Citation Nr: 21025320 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-41 061 DATE: April 27, 2021 ORDER 1. For the period from November 14, 2013 forward, a rating in excess of 10 percent for degenerative joint disease (arthritis) of the left knee is denied. 2. For the period from November 14, 2013 forward, a rating in excess of 10 percent for degenerative joint disease of the right knee is denied. 3. For the period from November 25, 2013 forward, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the rating period from November 14, 2013 forward, the right knee arthritis disability has been manifested by flexion greater than 30 degrees, extension less than 15 degrees, stiffness, and painful motion, without ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibular, or genu recurvatum. 2. For the rating period from November 14, 2013 forward, the left knee arthritis disability has have been manifested by flexion greater than 30 degrees, extension less than 15 degrees, stiffness, and painful motion, without ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibular, or genu recurvatum. 3. For the period from November 25, 2013 forward, the Veteran has not been unable to secure or maintain substantially gainful employment solely as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. For the rating period from November 14, 2013 forward, the criteria for an increased disability rating in excess of 10 percent for the right knee arthritis disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003. 2. For the rating period from November 14, 2013 forward, the criteria for an increased disability rating in excess of 10 percent for the left knee arthritis disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003. 3. For the period from November 25, 2013 forward, the criteria for referral to the Director of Compensation and Pension for consideration of a TDIU under 38 C.F.R. § 4.16(b) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1981 to October 1985 and from April 1987 to April 2003. The Veteran originally requested a Board of Veterans’ Appeals (Board) hearing on a November 2015 VA Form 9, Appeal to the Board, but subsequently withdrew this request for a Board hearing on a July 2019 Statement in Support of a Claim. Previously, the claims currently on appeal were remanded by the Board in December 2019 for further development. Development has been completed, and the case is again before the Board. 1. Rating Left Knee Arthritis from November 14, 2013 Forward 2. Rating Right Knee Arthritis from November 14, 2013 Forward Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. For the entire rating period on appeal from November 14, 2013 forward, the Veteran is in receipt of 10 percent disability ratings for the right and left knee disabilities under the substantive rating criteria of Diagnostic Code 5003 (arthritis with pain and noncompensable limitation of motion), notwithstanding references to Diagnostic Code 5257. 38 C.F.R. § 4.71a. The Veteran appeals for disability ratings in excess of 10 percent for the right and left knee disabilities. (The Board notes that Diagnostic Code 5257 was mistakenly included on the codesheet, but neither the clinical findings nor the reported impairments of the right knee include recurrent subluxation or lateral instability, so that code designation should be removed from the codesheet.) There is a diagnosis of arthritis in both the right and left knees, diagnosed in 2009 as documented on the September 2020 VA examination report. As the Veteran is already in receipt of 10 percent ratings for the noncompensable limitation of motion due to arthritis pain, a higher rating is not possible under Diagnostic Code 5003. The Board will look to potentially higher ratings based on limitations of motion. 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 both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and 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. Diagnostic Code 5257 contemplates “other impairment” of the knee including recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Diagnostic Code 5262 contemplates impairment of the tibia and fibula. After a review of all the lay and medical evidence, the Board finds that for the entire rating period on appeal from November 14, 2013 forward, the criteria for increased disability ratings in excess of 10 percent for the right and left knee arthritis disabilities have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.71a. For the rating period from November 14, 2013 forward, the right knee and left knee arthritis disabilities have been manifested by flexion greater than 30 degrees, extension less than 15 degrees, stiffness, and painful motion, without ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibular, or genu recurvatum. A September 2020 VA examination report reflects right knee flexion was to 80 degrees, and extension to 0 degrees, both with pain noted on examination that causes functional loss. Left knee flexion was to 90 degrees and extension to 0 degrees, both with pain noted on examination that causes functional loss. The VA examiner noted no instability or subluxation in either the left or right knee. Even with consideration of additional limitations of motion due to pain, the evidence does not show limitation to 30 degrees of flexion or 15 degrees of extension as needed for an increased (20 percent) rating. See VAOPGCPREC 9-98 (interpreting that painful motion is considered limited motion at the point that the pain actually sets in). While the Veteran has bilateral knee pain and difficulty with prolonged walking and sitting, even taking into account additional functional limitation due to pain, VA treatment records and VA examination reports indicates ranges of motion that do not more nearly approximate the 20 percent criteria. Based on the above, the degree of functional impairment does not warrant higher ratings based on limitation of motion for the knees. See 38 C.F.R. §§ 4.40, 4.45, and 4.59; DeLuca. For these reasons, the appeal for increased disability ratings in excess of 10 percent is not warranted under Diagnostic Codes 5260 or 5261 for limitation of flexion and extension of the knees for the entire rating period from November 14, 2013 forward must be denied. 38 C.F.R. § 4.71a. The Board has also considered whether a separate disability rating is warranted for any other knee disability. As the evidence of record does not reflect that the right or left knee is ankylosed, that there is recurrent subluxation or lateral instability, that the semilunar cartilage is dislocated with frequent episodes of locking, pain, and joint effusion, that the semilunar cartilage has been removed, that there is malunion or nonunion of the tibia and fibula, that there is a current diagnosis of genu recurvatum, a separate disability rating or increased disability rating under an alternative Diagnostic Code is not warranted. For these reasons, the claim for increase must be denied. See Diagnostic Codes 5256, 5258, 5259, 5261, 5262, or 5263. 38 C.F.R. § 4.71a. TDIU Legal Authority 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. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). 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). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability rating is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). 3. TDIU for the Period from November 25, 2013 Forward The Veteran asserts that he is unable to work due to the service-connected left and right knee disabilities. See May 2020 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. As of November 14, 2013, the Veteran was service connected for glaucoma, rated as 30 percent disabling, degenerative joint disease of both the left and right knees, each rated as 10 percent disabling, rotator cuff tendonitis of both the left and right shoulder, each rated as noncompensable, post-traumatic joint laxity of the right ankle joint, rated as noncompensable, and onychomycosis of the right great toenail, rated as noncompensable, for a combined overall disability rating of 50 percent. Because the Veteran does not have one service-connected disability rated at least 60 percent, or one service-connected disability rated at least 40 percent with a minimum combined rating of at least 70 percent for all service-connected disabilities, the service-connected disabilities do not satisfy the threshold combined rating percentage requirement for TDIU eligibility for the period from November 14, 2013 forward. 38 C.F.R. § 4.16(a). Further, having considered all the evidence of record, lay and medical, the Board finds that referral under 38 C.F.R. § 4.16(b) to the Compensation and Pension Director for TDIU adjudication is not warranted for the period from November 14, 2013 forward. While the evidence of record reflects that the service-connected disabilities caused some functional limitations and impairment, the service-connected disabilities did not render the Veteran unable to secure or maintain substantial gainful employment from November 14, 2013 forward. During the relevant period, the left and right knee disabilities manifested as limitation of right knee flexion to 80 degrees and extension to 0 degrees with pain, and limitation of left knee flexion to 90 degrees and extension to 0 degrees with pain, as noted in the September 2020 VA examination report. The left and right knee disabilities made it difficult for the Veteran to stand or walk for prolonged periods of time. See September 2020 VA examination report. Regarding the Veteran’s work history, the record reflects that since separation from military service, the Veteran has been employed as an assistant supervisor in a construction firm and as a letter carrier with the postal service. See January 2014 Counseling Record – Narrative Report. Regarding the Veteran’s educational history, the record shows that the Veteran holds an Associate’s degree in liberal arts. The Veteran asserts that he became too disabled to work in November 2013 due to the service-connected left and right knee disabilities. However, a November 2013 Counseling Narrative Report also shows that the Veteran did not meet the criteria for an employment handicap due to having overcome the impairments to employability and currently qualifying for employment consistent with his abilities, aptitudes, and interests. A January 2014 Counseling Record – Narrative Report shows that the Veteran had good clerical skills and good computer skills, and was interested in working as a lens technician, eligibility worker, and in the field of administration. This document also shows that the Veteran’s limitations preclude excessive climbing, standing, walking, sitting, far vision, and peripheral vision. A January 2014 letter of recommendation for employment purposes drafted by a lead accounting technician with personal knowledge of the Veteran’s employment history during service states that the Veteran worked for Defense Finance and Accounting Services during service, demonstrated exemplary administrative and leadership skills while doing so, and would be an asset to an organization performing work in this field. The Board has carefully considered the functional impairment caused by the left and right knee disabilities, each currently rated as 10 percent disabling. However, the Board finds that the weight of the lay and medical evidence of record shows that the Veteran is not prevented from obtaining or maintaining substantially gainful employment solely by reason of the service-connected knee disabilities for the period from November 25, 2013 forward; therefore, and referral to the Director of Compensation & Pension Service is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.