Citation Nr: 21023776 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-32 637 DATE: April 21, 2021 ORDER Entitlement to an evaluation in excess of 10 percent prior to October 17, 2019 and in excess of 20 percent thereafter for a right knee disability is denied. Entitlement to a separate disability rating of 10 percent, but no greater, under Diagnostic Code 5259 for right knee meniscectomy is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to October 17, 2019, the Veteran’s right knee disability did not manifest in flexion limited to 30 degrees or extension limited to 15 degrees, nor was ankylosis present. 2. After October 17, 2019, the Veteran’s right knee disability did not manifest in flexion limited to 15 degrees or extension limited to 20 degrees, nor was ankylosis present. 3. The Veteran’s right knee meniscectomy has resulted in removal of his meniscus with symptoms of pain and locking. CONCLUSIONS OF LAW 1. Prior to October 17, 2019, the criteria for an evaluation in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, and 4.71a, Diagnostic Codes 5010, and 5256-5263. 2. After October 17, 2019, the criteria for an evaluation in excess of 20 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, and 4.71a, Diagnostic Codes 5010, and 5256-5263. 3. The criteria have been met for a separate 10 percent disability rating, but no higher, for removal of semilunar cartilage that is symptomatic. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to March 1982 and from June 2004 to July 2005. He also has confirmed service in the United States Army National Guard during various periods of inactive duty training (INACDUTRA) and active duty for training (ACDUTRA). These matters come to the Board of Veterans’ Appeals (Board) on appeal from a March 2010 Department of Veterans’ Affairs (VA) regional office (RO) rating decision. The Veteran participated in a hearing before the undersigned in July 2018; a transcript of the hearing is associated with the claims file. These matters were previously remanded in November 2018 and August 2020 for further development and are once again before the Board. Preliminarily, the Board notes that the issue of entitlement to an increased rating under Diagnostic Code 5257 for the Veteran’s right knee instability currently evaluated at 10 percent is not currently before the Board as the Veteran has not appealed this separately rated issue. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether they were raised by the veteran, as well as the entire history of the veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59.  The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability.  It is the intention to recognize painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Id.   The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14.  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code (relating to range of motion) where pain does not cause a compensable functional loss. The “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because “pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011).  Section 4.59 does not require objective evidence of painful motion.  The regulation does not speak to the type of evidence required when assessing painful motion and therefore certainly does not, by its own terms, restrict evidence to “objective” evidence. Petitti v. McDonald, 27 Vet. App. 415, 427 (2015).  If credible, lay testimony may consist of a veteran’s own statements to the extent that the statements describe symptoms capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Rating Criteria for the Knee VA amended the criteria for rating knee disabilities effective February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. For both the prior and the current diagnostic criteria, Diagnostic Codes 5256 through 5263 set forth the relevant provisions regarding evaluating knee disabilities. However, in this case, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), symptomatic dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion (Diagnostic Code 5258), or impairment of the tibia and fibula (Diagnostic Code 5262); thus, the Diagnostic Codes pertaining to such impairments are not applicable. Furthermore, as mentioned in the introduction, the Veteran did not specifically appeal his separately assigned 10 percent rating under Diagnostic Code 5257, which addresses recurrent subluxation or lateral instability, from the November 2012 rating decision. As such, the Board lacks the ability to discuss these criteria, either old or new, in this decision. As relevant to the current appeal, Diagnostic Code 5259, which remains unchanged, provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Diagnostic Code 5260 addresses limitation of flexion of the knee. Under it, a 30 percent rating is for application where flexion is limited to 15 degrees; a 20 percent rating is for application where flexion is limited to 30 degrees; a 10 percent rating is for application where flexion is limited to 45 degrees; a 0 percent rating is for application where flexion limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 addresses limitation of extension of the knee. Under it, limitation of extension of the knee to 5 degrees warrants a noncompensable evaluation, limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation, limitation of extension to 15 degrees warrants a 20 percent evaluation, and limitation of extension to 20 degrees warrants a 30 percent evaluation. Limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation, the highest schedular evaluation under this Diagnostic Code.  38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II.  Discussion August 2009 private treatment records indicate that the Veteran has “frequent giving way and pain in his right knee” which causes him significant problems and is a candidate for a knee replacement. November 2009 VA treatment records show that the Veteran has a long history of progressive knee pain and is severely limited due to intense pain which radiates from his knees to his ankle and foot. The Veteran was noted to walk with a cane and to have an unsteady gait. November 2010 VA treatment records show that the Veteran has chronic knee pain, swelling, and a “popping and clicking sensation.” At a September 2012 VA examination, the Veteran complained of weakness, popping, and locking of his right knee and daily pain with sitting and standing. The Veteran reported flare-ups with his right knee with swelling and twisting movements. The examiner did not estimate the loss of function during a flare-up. The Veteran’s range of motion was flexion to 100 degrees with objective painful motion at 85 degrees, and extension was not limited. The VA examiner noted that the Veteran has a meniscectomy in 2004 and currently has popping, locking, and pain as residuals. At an August 2013 VA examination, the examiner noted that the Veteran underwent a second meniscectomy on his right knee in February 2013 and has pain, popping, locking, and buckling as residuals. The Veteran reported flare-ups; however, the VA examiner did not estimate the loss of function during flare-ups. The Veteran’s initial range of motion was flexion to 70 degrees with objective evidence of painful motion at 40 degrees, and extension was not limited. June 2015 VA treatment records indicate that the Veteran has had a chronic progression of his right knee pain and has “gotten to the point where he can hardly walk or get about.” The treating physician recommended a total knee arthroplasty as the only effective treatment remaining to be performed. At a September 2016 VA examination, the Veteran described flare-ups of his right knee as “hurts all the time with popping and snapping.” The VA examiner stated that while the Veteran’s range of motion during flare-up was normal, he has pain when walking and standing for long periods and that his knee gives out if sitting for too long. The Veteran’s flexion and extension range of motion was additionally not limited. A history of effusion, as he had arthrocentesis, was noted. February 2018 VA treatment records show that the Veteran has fairly severe medial compartment osteoarthritis of his right knee which is getting progressively worse over time. He has been referred for total knee arthroplasty but the surgeon will not perform the knee surgery until the Veteran’s abdominal issues are worked out. June 2018 VA treatment records indicate that the Veteran’s conservative treatments, to include injections, have not worked and that he is “not quite ready” for knee surgery. The Veteran’s flexion was limited to 90 degrees active range of motion. At a July 2018 hearing before the undersigned, the Veteran testified that his right knee pain worsened since the last September 2016 VA examination. The Veteran additionally described his symptoms as pain, locking, popping and snapping sensations, and giving way. The August 2018 Board decision remanded the issue to obtain a new VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). June 2018 treatment records show that the Veteran went to the emergency room for treatment of a flare-up of his right knee “that he’s had for years.” Additionally, a May 2019 VA treatment provider opined that a total right knee arthroplasty is necessary to treat the Veteran’s right knee disability. Pursuant to the remand, the Veteran participated in an October 2019 VA examination. However, the August 2020 Board decision held this examination to be inadequate as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458 (1993). For this reason, the Board will not discuss it any further. On remand, the Board directed the new VA examiner to discuss the June 2018 trip to the emergency room and May 2019 VA treatment provider’s opinion. At a November 2020 VA examination, the Veteran reported daily right knee pain with and without weight bearing, that his right knee will lock if sitting for 30-45 minutes, and that his right knee buckles about twice weekly. Regarding the June 2018 emergency room visit, the Veteran did not remember going to the emergency room for a right knee issue. Although the VA examiner stated that he was unable to locate the June 2018 nursing emergency department triage records, he did note the more detailed referred July 2018 orthopedic note which showed that the Veteran was treated with steroid injection which provided limited relief after such incident. The Veteran reported flare-ups with increased pain rated 9 out of 10 about 3 times a week lasting about 1-2 hours with no precipitating or aggravating factors. At examination, the Veteran was currently in flare-up. The Veteran further described that he was unable to walk more than 50 feet, stand for 10 minutes, run, make sharp pivoting movements, or climb ladders and stairs. The Veteran’s range of motion was flexion to 40 degrees and extension to 0 degrees. The examiner noted that the Veteran has pain and joint locking as residuals from his right knee meniscectomies. Prior to October 17, 2019, the Board finds that the Veteran’s symptoms are consistent with the 10 percent rating assigned under Diagnostic Code 5260 for his right knee disability. To warrant a higher 20 percent rating, the Veteran would need to show flexion limited to 30 degrees or extension limited to 15 degrees. As recorded in the medical records mentioned above, the Veteran, at worst, has flexion to about 40 degrees and extension to 0 degrees, and therefore does not meet the criteria for a twenty percent rating based on limited range of motion. Further, the Board notes that painful motion does not necessarily constitute limitation of motion for rating purposes. See Mitchell, 25 Vet. App. at 41. Although additional functional loss due to painful motion is alleged by the Veteran, the Board cannot find any objective medical evidence to show that painful motion or additional functional loss caused such an effect as such that would approximate flexion limited to 30 degrees. The Board notes that the September 2012 and August 2013 VA examiner did not estimate the loss of function in terms of range of motion during a flare-up pursuant to Sharp. However, the Board finds this omission to be immaterial as the Veteran’s right knee disability has been noted to progressively worsen over time, yet the most recent November 2020 VA examination still only measured flexion no worse than 40 degrees during a flare-up. Since October 17, 2019, the Board finds that the Veteran’s symptoms are consistent with the 20 percent rating assigned under Diagnostic Code 5260 for his right knee disability. To warrant a higher 30 percent rating, the Veteran would need to show flexion limited to 10 degrees or extension limited to 20 degrees. As recorded in the medical records mentioned above, the Veteran, at worst, has flexion to about 40 degrees and extension to 0 degrees, to include during flare-ups, and therefore does not meet the criteria for a 30 percent rating based on limited range of motion. There is simply no objective medical evidence which shows that the Veteran satisfies these criteria. However, the Board finds that a separate 10 percent rating under Diagnostic Code 5259 for right knee meniscectomy is warranted as the Veteran has residuals of pain, locking, popping, and giving way from both his 2004 and 2013 right knee meniscectomies. Since the meniscus was removed from the Veteran’s knee, but he still experiences symptomatic pain and other symptoms, he is entitled to an additional 10 percent rating under Diagnostic Code 5259. Therefore, the criteria for a rating under Diagnostic Code 5259 are met, and a rating for the right knee pursuant to Diagnostic Code 5259 is warranted for symptomatic meniscectomy; this is the only evaluation allowed by this code. In sum, the Board finds that the Veteran’s right knee disability is appropriately rated at 10 percent prior to October 17, 2019, and to 20 percent thereafter under Diagnostic Code 5260. The Board also finds that the Veteran is entitled to a separate 10 percent rating under Diagnostic Code 5259. The benefit-of-the-doubt doctrine has been applied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to TDIU is remanded. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). An extraschedular total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Veteran is currently service connected for left shoulder arthritis at 20 percent disabling, right knee degenerative joint disease at 20 percent disabling, a right knee meniscectomy at 10 percent disabling, tinnitus at 10 percent disabling, right shoulder arthritis at 10 percent disabling, right knee instability at 10 percent disabling, and hearing loss and right knee scar as noncompensable. Based on this, he does not meet the schedular criteria for a TDIU as he does not have a total combined disability rating of 60 percent or more. See 38 C.F.R. § 4.16(a). As such, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. February 2008 VA treatment records show that the Veteran worked as a sawmill operator; this is a sedentary position. He stated that his job was just to turn the saw on and off. However, the Veteran also reported that he was unable to do any maintenance or heavy lifting due to his shoulder and right knee disabilities. July 2008 shoulder orthopedic records indicate that the Veteran was unable to return to work and that his company “apparently terminated his employment.” This record does not go into any further detail. December 2009 and September 2012 VA examiners opined that the Veteran “may be able to engage in light and sedentary employment,” “if he so chooses.” No further explanation was provided. A June 2013 private letter from his orthopedic surgeon states that the Veteran has been unable to find a job for the prior 4 years because of the continued problems with his left shoulder and right knee. The private letter goes on to state that the Veteran failed physical examinations for work secondary to those two conditions. The Board notes that the Veteran reiterated that he was unable to pass a physical examination at his July 2018 hearing. The September 2016 VA examiner for his right knee disability stated that the Veteran was unable to bend, squat, stoop, walk, or stand for prolonged periods of time. Additionally, the November 2020 VA examiner for the Veteran’s right knee opined that the Veteran’s right knee disability impacted his ability to work as he was unable to walk more than 50 feet, stand for 10 minutes, run, make sharp pivoting movements, and climb ladders or stairs. Furthermore, the Veteran reported that his knee would lock up after sitting for 30-45 minutes. The Board does not have the authority to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Based on the above, to specifically include the June 2013 private letter from the Veteran’s orthopedic surgeon stating that he has been unable to find work due to his service-connected shoulder and right knee disabilities and testimony that the Veteran is unable to pass physical examinations necessary to work, the Board finds that referral to the Director of the Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b) is necessary. The matters are REMANDED for the following action: Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. Include a copy of this remand as well as a full statement as to the Veteran’s service-connected disabilities, employment history, education, and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.