Citation Nr: 21025309 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-34 412A DATE: April 27, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected left medial meniscectomy, status post-surgery with scars, is denied. Entitlement to a disability rating in excess of 10 percent for service-connected right medial meniscectomy, status post-surgery with scars, is denied. Entitlement to a total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence of record shows that the symptoms the Veteran experienced due to his left medial meniscectomy, status post-surgery with scars, include painful motion of the knee; but has not been manifested by flexion limited to 45 degrees or less, nor extension limited to 10 degrees or more. 2. The evidence of record shows that the symptoms the Veteran experienced due to his right medial meniscectomy, status post-surgery with scars, include painful motion of the knee; but has not been manifested by flexion limited to 45 degrees or less, nor extension limited to 10 degrees or more. 3. The Veteran’s only service-connected disabilities, bilateral medial meniscectomy, status post-surgery with scars, do not satisfy the schedular criteria for TDIU and extraschedular referral is not warranted. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected left medial meniscectomy, status post-surgery with scars, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. 2. The criteria for a disability rating in excess of 10 percent for service-connected right medial meniscectomy, status post-surgery with scars, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from November 1974 to August 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in August 2020 for social security administration (SSA) records and for a new VA examination. There has been at least substantial compliance with these remand directives, and the Board will proceed with the adjudication of this appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations 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. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran contends that his bilateral medial meniscectomy, status post-surgery with scars, is compensable at a degree in excess of 10 percent. He has emphasized pain and resulting functional impairment, particularly with standing and walking. See, e.g., March 2014, December 2018, and December 2020 VA examinations. As an initial matter, the Board notes that significant changes were made to the criteria for evaluating orthopedic disabilities under 38 C.F.R. § 4.71a, effective February 7, 2021. See 85 Fed. Reg. 76460 (Feb 7, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran is currently assigned a 10 percent evaluation for his diagnosed right medial meniscectomy, status post-surgery with scars and 10 percent for his left medial meniscectomy, status post-surgery with scars evaluated under Diagnostic Code 5259. Under Diagnostic Code 5259, a maximum 10 percent rating is prescribed for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The record reflects that the Veteran had a meniscectomy in service. Therefore, a 10 percent rating under diagnostic code 5259 for both knees is appropriate. As 10 percent is the maximum rating for this disability under this diagnostic code, the Veteran is not eligible for a rating higher than 10 percent in this regard. The Board has also assessed the Veteran’s knee disabilities under DC 5258 which provides that a 20 percent rating is assigned for dislocation of the semilunar or meniscal cartilage of the knee, with frequent episodes of “locking,” pain, and effusion into the joint. The Board finds that a rating of 20 percent is not appropriate as the Veteran has not experienced significant locking and pain in either knee. No change was made to either DC 5259 or 5258 as part of the February 2021 revisions. VA recognizes that separate ratings may be assigned for knee disability under some DCs where the symptomatology supporting the evaluations does not overlap; limitation of motion (5003/5260/5261) and stability (5257) are distinct from each other, for example. 38 C.F.R. § 4.41; see generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. However, as discussed below, no such separate and distinct symptomatology is demonstrated for either knee. The Board reiterates the Veteran has had painful and limited motion of both knees during this case. For limitation of motion, there are three potentially applicable DCs. DC 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension is rated under Code 5261. A noncompensable evaluation is assigned for limitation to 5 degrees. A 10 percent evaluation is for assignment when extension is limited to 10 degrees. Fifteen degrees limitation merits a 20 percent evaluation, and 20 degrees merits a 30 percent evaluation. Limitation to 30 degrees is evaluated as 40 percent disabling, and limitation to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, DC 5261. VA General Counsel held in VAOPGCPREC 9-2004 that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Finally, DC 5003, for degenerative arthritis, provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, as discussed above. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. The criteria, discussed in detail above, apply to the knee as a major joint. 38 C.F.R. § 4.45 (f). Here, a 10 percent rating is already in effect for both knees. The Board also notes that, in the case of DCs 5003 and 5259, the symptomatology underlying the assignable ratings cannot be distinguished. DC 5003 is based on limitation of motion. DC 5259 is based on unspecified “symptoms,” which include the Veteran’s pain and resulting limitations of function, including movement. To assign evaluations under both simultaneously would constitute prohibited pyramiding or compensating a Veteran twice for the same manifestations of disability. 38 C.F.R. § 4.14. No changes were made to DCs 5260 or 5261 as part of the February 2021 revisions. DC 5003 was revised to clarify it only applies to degenerative arthritis, and not post-traumatic arthritis. Under the revised criteria, Diagnostic Code 5010 applies only to post-traumatic arthritis, which is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Prior to February 7, 2021, Diagnostic Code 5010 instructed the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Regardless, the record does not reflect the Veteran warrants an increased rating in this case based upon limitation of motion, even when taking into account his complaints of pain. In pertinent part, VA examination in May 2012 reflect both knees had flexion to 140 degrees or greater, no limitation of extension, and no evidence of painful motion. There was no change after repetitive testing. The March 2014 VA examination showed the right knee had flexion to 130 degrees, the left knee had flexion to 125 degrees, and both had normal extension. Although the examiner checked the box to indicate no painful motion, it was also indicated there was pain at the end of flexion for both knees. In any event, there was no change after repetitive testing. The December 2018 VA examination showed the right knee had flexion to 110 degrees, the left knee had flexion to 90 degrees, and both had normal extension. There was no change after repetitive testing. Further, the examiner noted the Veteran was being examined immediately after repetitive use over time; but indicated that pain, weakness, fatigability or incoordination did significantly limit functional ability of either knee with repeated use over a period of time. At the most recent VA examination of the Veteran’s bilateral knees in December 2020, the examiner diagnosed the Veteran with bilateral medial meniscectomy, status post-surgery with scars. It was noted that the Veteran reported that he had flare ups in knees when he walks for extended periods of time. The Veteran’s right knee flexion measurement was recorded as 0 to 100 degrees with objective evidence of painful motion and right extension was recorded as 100 to 0 degrees with objective evidence of painful motion. The Veteran’s left knee flexion measurement was recorded as 0 to 90 degrees with objective evidence of painful motion and right extension was recorded as 90 to 0 degrees with objective evidence of painful motion. There was no further limitation of range of motion with repetitive use. There was no evidence of pain on weight bearing. The examiner noted that the right and left knees show objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. It was noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use of time. The Veteran’s muscle strength of the right knee for both flexion and extension was rated 5/5 as normal muscle strength. The examiner stated that they could not estimate the limitation of range of motion that occurred during flare ups without speculation. The Veteran reported that during flare ups that he “cannot walk as much”. In summary, the aforementioned VA examinations do not reflect the Veteran’s flexion and extension range of motion measurements of the bilateral knees render him eligible for a compensable rating based on limitation of motion during the appeal period under either DC 5260 and 5261 even when taking into account his complaints of pain; i.e., neither knee has been manifested by flexion limited to 45 degrees or less, nor extension limited to 10 degrees or more. Nothing in the other evidence of record demonstrates limitation of motion to the extent necessary for a compensable rating under these Codes, to include during flare-ups. Prior to February 7, 2021, Diagnostic Code 5257 provided that slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, while a 30 percent evaluation requires severe impairment. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). In any case, the Board notes that while the Veteran has used knee braces, no recurrent subluxation or instability was demonstrated on any of the aforementioned VA examinations. Further, joint stability tests were conducted as part of these examinations were all normal. Thus, consideration of DC 5257, either before or after the February 2021 revisions, is not warranted. Similarly, the required manifestations for evaluation under DCs 5256 (knee, ankylosis), 5262 (impairment of the tibia or fibula), and 5263 (genu recurvatum) are not applicable, as the presence of ankylosis, impairment of the tibia and/or fibula, or genu recurvatum have not been demonstrated for either knee. The Board acknowledges the December 2020 VA examiner stated there was movement than normal due to ankylosis, adhesions, etc. However, that examination also found there was no ankylosis, and the record does not reflect either knee has otherwise been diagnosed as such. Moreover, ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). No such impairment is demonstrated by the evidence of record for this period, to include during flare-ups. The Board also notes that while the February 2021 revisions made no changes to DC 5256 or 5263, the provisions of DC 5262 were revised. However, this Code still applied to impairment of the tibia and fibula, and, as noted, no such impairment is demonstrated in this case. Accordingly, VA has properly elected application of only one DC, 5259, in rating the right and left knee disabilities. No higher rating is possible under that DC, nor does the disability picture presented indicate application of DC 5258 is appropriate, as is noted above. No evaluation in excess of the current 10 percent rating, or assignment of additional compensable ratings, is warranted to include as a “staged” rating(s). Therefore, the preponderance of the evidence is against these appellate claims, and they must be denied. The Board also concurs with the determination below that the service-connected knee disabilities do not present such an exceptional or unusual disability picture so as to warrant consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria fully contemplate the manifestations of the Veteran's service-connected knee disabilities. As discussed above, he has reported that both knees are primarily manifested by pain and resulting functional impairment to include limitation of motion. Such impairment is addressed by the schedular criteria, to include the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 regarding the effect of pain. Nothing in the record, to include the Veteran's own contentions, demonstrates any manifestation of either knee that is not contemplated by the current schedular criteria. In addition, the Board concurs with the RO’s determination that separate compensable rating(s) are not warranted for the knee scars as the record does not demonstrate satisfies the criteria for such under any of the potentially DCs found at 38 C.F.R. § 4.118. TDIU VA will grant TDIU benefits when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must be at least one disability 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). Here, the Veteran is service connected for a left medial meniscectomy, status post-surgery with scars which has been assigned a 10 percent rating throughout the appellate period and a right medial meniscectomy, status post-surgery with scars which has been assigned a 10 percent rating throughout the appellate period. Consequently, the Veteran has not satisfied the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16 (a) for schedular TDIU consideration during the appellate period. In exceptional circumstances, where the Veteran does not meet the schedular TDIU criteria, a total rating may be assigned on an extraschedular basis upon a showing that he is unable to obtain or retain substantially gainful employment due solely to service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is unable to award an extraschedular TDIU in the first instance, and instead must first determine whether referral to the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of a referral is dependent on “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether extraschedular TDIU referral is warranted, the Board has considered the Veteran’s educational and occupational history. The Veteran’s social security administration (SSA) records indicate that he was self-employed from 1990 to 2012 and completed high school. The Veteran reported that he had retired from his occupation as an owner of an auto repair shop. The Veteran’s SSA records note that the Veteran is disabled due to a chronic pulmonary insufficiency, also listed as COPD, and due to multiple sclerosis (MS). Additionally, the Veteran is listed as being diagnosed with kidney complications, ulcers, arthritis throughout the body, enlarged prostate, polyps, asthma and chronic hip pain. There is no indication of the Veteran’s knees being listed as a medical condition. The SSA records note that the Veteran stopped working because of his medical conditions; again, the records do not note his service-connected knee disabilities as a medical condition. The Board finds that the facts are not sufficient to warrant referral to the Director of Compensation Service for consideration of an extraschedular TDIU. The evidence fails to substantiate that the Veteran’s service-connected knee symptoms are of such a severity or frequency that they prevent the Veteran from securing or following all forms of substantially gainful employment, consistent with his occupational history and educational attainment. The Veteran’s SSA records do note that the Veteran is disabled, but do not list the Veteran’s service-connected disabilities as being attributed to the Veteran’s disability. This fact does not support the Veteran’s assertion that his service-connected bilateral knee disabilities are so crippling that it infringes upon his ability to perform substantially gainful employment. Moreover, the Board cannot ignore the substantial evidence of record proving that the Veteran’s inability to perform physical labor during the appellate period is more likely the result of his COPD and multiple sclerosis, from which the Veteran still experiences residuals. These disabilities are not service-connected, and the record does not contain any medical evidence suggesting that this malady is in any way related to the Veteran’s military service. Unfortunately, the functional limitations caused by these conditions cannot be considered in this adjudication. There is nothing in the Veteran’s SSA documents that establishes that the Veteran’s decline in income was the sole result of limitations caused by his service-connected disabilities versus his other physical limitations caused by non-service-connected disabilities or other socioeconomic factors. For this reason, the Veteran’s SSA records are not probative in this determination. The Board finds no compelling evidence of record demonstrating that the Veteran’s bilateral knee disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. The Veteran has not argued or pointed to any probative evidence of record supporting referral for extraschedular consideration under 38 C.F.R. § 4.16 (b). In light of the above analysis, extraschedular referral is not warranted and entitlement to a TDIU is denied. The Board acknowledges the Veteran’s honorable service to our country and is sympathetic to the Veteran’s circumstances; however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). The Board is grateful to the Veteran for his honorable service and regrets that a more favorable outcome could not be reached in this appeal. John Kitlas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edward G. Lent 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.