Citation Nr: 21025287 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-17 081 DATE: April 27, 2021 ORDER Entitlement to an increased disability rating in excess of 20 percent for the left knee disability (diagnosed as degenerative joint disease, DJD) from January 24, 2012 to November 4, 2013 is denied. Entitlement to an increased disability rating in excess of 30 percent for the status post left knee replacement disability from January 1, 2015 is denied. Entitlement to a higher (compensable) initial disability rating for the left knee scars from January 24, 2012 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected left knee disability (TDIU) from November 13, 2013 is remanded for referral to the VA Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). FINDINGS OF FACT 1. From January 24, 2012 to November 4, 2013, the left knee DJD was rated at the maximum 20 percent under DC 5258, without evidence of ankylosis, compensable limitation of flexion or extension, recurrent subluxation or lateral instability, nonunion or malunion of the tibia and fibula, or genu recurvatum. 2. From January 1, 2015, the status post total left knee replacement manifested in pain and some weakness, without evidence of chronic residuals consisting of severe painful motion or weakness in the left knee. 3. From January 24, 2012, the left knee scars were neither painful nor unstable and did not result in disabling effects. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 20 percent for the left knee DJD from January 24, 2012 to November 4, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4,71, 4,71a, Diagnostic Code 5258. 2. The criteria for an increased disability rating in excess of 30 percent for the status post left knee replacement from January 1, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4,71, 4,71a, Diagnostic Code 5055. 3. The criteria for a higher (compensable) initial disability rating for the left knee scars from January 24, 2012 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to July 1981. This matter is on appeal from a July 2012 rating decision issued by the Regional Office (RO) in Roanoke, Virginia. The Veteran testified in Roanoke, Virginia, at a Board videoconference hearing in November 2016 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. During the November 2016 Board videoconference hearing, the Veteran testified that the left knee disability has precluded him from working. The Veteran filed an application for increased compensation based on unemployability (TDIU) in November 2016. These matters were brought before the Board in March 2018. The Board found that a TDIU claim was raised by the Veteran on the record. The Board remanded the TDIU issue in order to send TDIU notice to the Veteran, collect outstanding VA treatment records, and conduct a VA examination. VA treatment records were submitted to the claims file in September 2019. A VA examination was conducted in September 2019. A December 2019 supplemental statement of the case denied all three issues on appeal. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Disability Ratings Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be applied, 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The Veteran was in receipt of a 20 percent rating for the left knee DJD from January 24, 2012 to November 4, 2013 under DC 5258, received a 100 percent rating for a total left knee replacement from November 4, 2013 to January 1, 2015 for surgical convalescence, and then received a 30 percent rating for residuals of the status post total left knee replacement from January 1, 2015 under DC 5055. 1. Increased Rating for the Left Knee DJD from January 24, 2012 to November 4, 2013 is Denied. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.  The appropriate diagnostic codes for rating limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in flexion under Diagnostic Code 5260 (leg, limitation of flexion) and extension under Diagnostic Code 5261 (leg, limitation of extension).  Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a.  Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a.  During the pendency of this appeal the diagnostics codes in 38 C.F.R. § 4.71a have been revised, pertinent to this case Diagnostic Codes 5257 and 5262.  Diagnostic Code 5257, prior to the February 7, 2021 revision, contemplated “other impairment” of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a.  Diagnostic Code 5262, prior to February 7, 2021, contemplated impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words “slight,” “moderate,” “severe,” and “marked” as used in the various diagnostic codes are not defined in the VA Rating Schedule.  Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present.  Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of “locking,” pain, and effusion into the joint.  Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present.   A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified.  Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a.  Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. VA’s Office of General Counsel has provided guidance concerning increased rating claims for knee disabilities. VA’s General Counsel interpreted that compensating a claimant for separate functional impairment under Diagnostic Code (DC) 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban, 6 Vet. App. 259, 262; Lyles, 29 Vet. App. 107.  In VAOPGCPREC 9-98, VA’s General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. §§ 4.59. In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by X-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent X-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant’s painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261.  The VA General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered.  After a review of all the lay and medical evidence of record, the Board finds that from January 24, 2012 to November 4, 2013, the left knee DJD disability was rated at the maximum 20 percent rating under DC 5258, and there is no evidence of ankylosis, compensable limitation of flexion or extension, recurrent subluxation or lateral instability, nonunion or malunion of the tibia and fibula, or genu recurvatum, to warrant an increased or separate compensable rating. A VA examination in June 2012 measured ranges of motion at 100 degrees of flexion and 0 degrees of extension. The VA examiner found no evidence of ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. The evidence of record does not establish, and the Veteran does not contend, that the left knee disability exhibited ankylosis, compensable limitation of flexion or extension, recurrent subluxation or lateral instability, nonunion or malunion of the tibia and fibula, or genu recurvatum for the rating period on appeal from January 24, 2012 to November 4, 2013 to warrant a higher rating or separate compensable disability rating. See January 2012 VA Treatment Records (The VA examiner noted no instability); May 201 VA Treatment Records (The Veteran wore a brace for pain); August 2012 VA Treatment Records (The VA examiner noted arthritis, crepitus, and no compensable limitation of motion); September 2012 (The Veteran reported weakness, pain, and numbness, especially worse with weightbearing). See 38 C.F.R. § 4.71a Diagnostic Codes 5256, 5257, 5259, 5260, 5261, 5262, or 5263. For these reasons, the Board finds that the criteria for an increased disability rating for the left knee DJD from January 24, 2012 to November 4, 2013 are not met; therefore, this claim must be denied. 2. Increased Rating for the Total Replacement of the Left Knee from January 1, 2015 is Denied. For the period subsequent to total knee replacement, the right knee disability has been rated under Diagnostic Code (DC) 5055, which provides criteria for rating knee disabilities that require knee replacement surgery. Under those criteria, a 100 percent disability rating is assigned for one year following the surgery. Thereafter, the disability is to be rated as being no less than 30 percent disabling but may be assigned a higher disability rating based on demonstrated residual weakness, pain, or loss of motion consistent with the criteria under DCs 5256, 5261, or 5262. A 60 percent disability rating may also be assigned where the post-surgery evidence shows chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to DCs 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula). 38 C.F.R. § 4.71a, DC 5055. A 60 percent (maximum schedular) rating is assigned if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. The words “severe” referencing painful motion or weakness and “intermediate” degrees of disability as used in DC 5055 are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6; Sellers v. Wilkie, 30 Vet. App. 157 (2018). After a review of all the lay and medical evidence of record, the Board finds that for the rating period from January 1, 2015 the status post total left knee replacement manifested in pain and some weakness, without evidence of chronic residuals consisting of severe painful motion or weakness in the left knee. The VA treatment records pertaining to this period on appeal do not indicate that the Veteran experienced chronic residuals of the left total knee replacement consisting of painful motion or weakness in the left knee, as contemplated by the higher 60 percent rating. See January 2016 VA Treatment Records (The Veteran reported pain but also reported that he can climb steps); November 2016 VA Treatment Records (The Veteran reported some weakness and noted that he used a cane, but the VA examiner found that the Veteran had full range of flexion and extension); January 2017 VA Treatment Records (The VA examiner measured flexion at 70 degrees and extension at 0 degrees). A September 2019 VA examination found no ankylosis, recurrent subluxation or lateral instability, nonunion or malunion of the tibia and fibula, or genu recurvatum. The VA examiner measured flexion at 70 degrees and extension at 0 degrees, with pain, fatigue, and lack of endurance after repetitive use over time. The VA examiner assessed that there was no functional loss after repetitive use testing with at least three repetitions or during flare ups. Based on the foregoing, the preponderance of the evidence is against the claim for an increased rating in excess of 30 percent for the status post total left knee replacement from January 1, 2015; thus, the claim must be denied. 3. Higher Initial Rating for Left Knee Scars from January 24, 2012 is Denied. The Veteran is in receipt of a 0 percent rating under DC 7805 from January 24, 2012 for the left knee scars. The eight characteristics of disfigurement for the purposes of rating under 38 C.F.R. § 4.118 are: scar of 5 in. or more (13 or more centimeters (cm.)) in length; scar at least 1/4 in. (0.6 cm.) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 sq. in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 sq. in. (39 sq. cm.); and skin indurated and inflexible in an area exceeding 6 sq. in. (39 sq. cm.). Note(1). Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage in an area or areas of at least 6 square inches (39 sq. centimeters (cm.)) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7801. Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7802. One or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118. After a review of all the lay and medical evidence of record, the Board finds that for the entire rating period from January 24, 2012 the service-connected left knee replacement scars were neither painful nor unstable, did not cover an area or areas of 144 sq. in. or greater, and did not result in any additional disabling effects. As such, a higher (compensable) rating for the left knee replacement scars is not warranted under Diagnostic Code 7805. 38 C.F.R. § 4.118. See June 2012 VA Examination; September 2019 VA Examination. Accordingly, the Board finds that the criteria for a higher (compensable) initial disability rating for the left knee replacement scars have not been more nearly approximated for the entire rating period on appeal. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 4. TDIU from November 13, 2013 is Remanded. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). There are a variety of potentially relevant factors in order to determine whether a veteran can secure and follow a substantially gainful occupation under 38 C.F.R. § 4.16: (1) the veteran’s history, education, skill, and training, (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue, including limitations in lifting, bending, sitting, and other similar activities, and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, including difficulty concerning memory, concentration, ability to adapt to change, ability to handle work place stress, ability to get along with coworkers, and ability to demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In this case, the Veteran submitted an application for increased compensation based on unemployability (VA Form 21-8940) in November 2016. The Veteran reported that he worked as a driver for Bassett Furniture from July 2006 to January 2011 and as a groundskeeper for Henrico County from March 2011 to November 13, 2013. The Veteran checked the box that he has not tried to obtain employment since he became too disabled to work. The Veteran also reported that he graduated from high school. In the June 2012 VA examination, the VA examiner indicated that the left knee disability affected the Veteran’s ability to work. The VA examiner explained that the Veteran worked as a groundskeeper and could not carry the garbage up or down the hill, has to avoid lifting, and misses work because of the symptoms associated with the left knee disability. In the September 2019 VA examination, the VA examiner noted that the left knee disability affected the Veteran’s ability to work. The VA examiner explained that the Veteran has difficulty walking, standing, and squatting. Considering the above evidence, the Board finds that remand is warranted to obtain an opinion from a vocational or similar occupational specialist to help assess the impact of service-connected disabilities on employability. The matters are REMANDED for the following action: 1. Ask a VA vocational or similar occupational specialist to evaluate the effect of the service-connected left knee disability on the Veteran’s employability (the ability to obtain or maintain substantially gainful employment). Specifically, the specialist is directed to assess the extent of functional and industrial impairment resulting from the service-connected left knee. The Veteran should be advised that failure to participate in the occupational evaluation may result in a denial of benefits. (a.) The opinion should address whether the service-connected left knee alone is so disabling as to render the Veteran unable to perform any level of work, and/or is so disabling as to prevent training for positions at which the Veteran could work. (b.) A medical, educational, and employment history should be taken. If the Veteran fails to provide the requested history, the specialist should provide the requested opinion based upon the available evidence of record. (c.) The Veteran’s age and the effects of non-service-connected disabilities cannot be factors for consideration in making the determination; however, the effects of treatments and medications used to treat the service-connected disability should be considered in the opinion. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. 2. Then, readjudicate the issue of a TDIU. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.