Citation Nr: 21025760 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-27 997 DATE: April 28, 2021 ORDER A disability rating greater than 10 percent for status post arthroscopy of the right knee with arthritis (hereinafter right knee disability) is denied. A disability rating greater than 10 percent for status post arthroscopy of the left knee with arthritis (hereinafter left knee disability) is denied. A separate 20 percent rating for right knee instability is granted. A separate 20 percent rating for left knee instability is granted. A total disability rating based on individual unemployability (TDIU) prior to July 24, 2014 is denied. FINDINGS OF FACT 1. The Veteran's right knee disability is not manifested by flexion limited to 30 degrees or extension limited to 15 degrees. 2. The Veteran's left knee disability is not manifested by flexion limited to 30 degrees or extension limited to 15 degrees. 3. Resolving reasonable doubt in the Veteran’s favor, his right knee disability is manifested by moderate recurrent subluxation. 4. Resolving reasonable doubt in the Veteran’s favor, his left knee disability is manifested by moderate recurrent subluxation. 5. There is no evidence that the Veteran met the criteria for TDIU prior to July 24, 2014, the date of claim. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5259, 5260, 5261. 2. The criteria for a disability rating greater than 10 percent for left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5259, 5260, 5261. 3. The criteria for a separate 20 percent rating for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.71a, DC 5257. 4. The criteria for a separate 20 percent rating for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.71a, DC 5257. 5. The criteria for an effective date prior to July 24, 2014, for TDIU are not met. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.321(b)(1), 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1998 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision. The Board remanded the claim in September 2020 to obtain a medical opinion. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Bilateral Knee Disability The Veteran is currently assigned separate 10 percent ratings for right and left knee disabilities under DC 5259. [The Board notes that for the period August 4, 2001 to July 24, 2014 the current 10 percent ratings were assigned pursuant to DC 5099-5019.] Under DC 5259, a maximum 10 percent rating is prescribed for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. Degenerative arthritis established by x-ray findings will be rated 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 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, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. Limitation of flexion of the leg is evaluated as follows: flexion limited to 15 degrees (30 percent); flexion limited to 30 degrees (20 percent); flexion limited to 45 degrees (10 percent); and flexion limited to 60 degrees (0 percent). 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (0 percent). 38 C.F.R. § 4.71a, DC 5261. 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. The criteria, discussed in detail above, apply to the knee as a major joint. 38 C.F.R. § 4.45(f). Separate ratings under DC 5260 and 5261 may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2004); 38 C.F.R. § 4.14. On review, there is no evidence of right or left knee flexion limited to 30 degrees or extension limited to 15 degrees and a rating greater than 10 percent based on limitation of motion is not warranted under DC 5260 or 5261 at any time during the appeal period. The Veteran was afforded VA examinations in October 2014, March 2019, and February 2021. The Board notes that flexion of the knees was worst in March 2019 when flexion of the right and left knee was limited to 60 and 55 degrees, respectively. On all examinations, extension of both knees was limited to 0 degrees, to include any pain on repetitive motion. In making this decision, the Board acknowledges the Veteran's complaints of pain and other limitations and notes he is competent to report his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a layperson is competent to report on that of which he or she has personal knowledge). Notwithstanding, the Board does not find adequate pathology sufficient to warrant a higher rating based on pain on motion or other factors. Bilateral Knee Instability As part of its analysis, the Board has considered whether a separate rating under DC 5257 for recurrent subluxation or lateral instability is appropriate. A 10 percent rating is assigned when slight impairment is shown, a 20 percent rating is warranted for moderate disability, and a maximum 30 percent evaluation is warranted for severe disability. 38 C.F.R. § § 4.71a. See also Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (holding that DC 5257 is not predicated on loss of range of motion). Descriptive terms such as “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The Board notes that the February 2021 VA examination noted a diagnosis of bilateral knee instability. Further, the Veteran reported that he has a history of instability or recurrent subluxation of both knees. Specifically, the Veteran stated that when he gets out of bed his knees give out. Additionally, the examiner went on to note that there is recurrent subluxation or persistent instability bilaterally. The examiner also concluded that the Veteran required a cane to ambulate as a result of this instability. Based on the foregoing, the Board finds that a separate 20 percent rating is warranted for moderate recurrent subluxation for both the right and left knee. However, at no time during the appeal period has any of the Veteran’s physicians or VA examiners noted the Veteran to have severe recurrent subluxation or lateral instability. As such, a rating higher than 20 percent is not warranted. Additional diagnostic codes for the knee address ankylosis, impairment of the tibia and fibula, and genu recurvatum, and are not applicable to this case, as there were no findings of any of these issues on examination. Therefore, a rating higher than 20 percent is not warranted. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A TDIU claim is a claim for increased compensation, so the effective date rules for increased compensation claims apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). The pertinent criteria for the effective date of an award for an increase in compensation are found in 38 U.S.C. § 5110(b)(2) and 38 C.F.R. §§ 3.400(o)(1) and (o)(2). According to this statute and regulation, an effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2). The Veteran was granted a TDIU effective July 24, 2014, the date of claim for a TDIU. However, as stated above, the Veteran could be granted an effective date up to one year prior to the date of claim if it is factually ascertainable that an increase in disability had occurred. The Board, upon review of the record, finds that the July 24, 2014 effective date is appropriate. There is presently no evidence of record showing the Veteran was unable to obtain substantially gainful employment prior to the July 2014 effective date. Conversely, medical records dates April 2014 show the Veteran to have knee pain, however, noted no limitations on activity. Further, an October 2014 VA examination noted no functional impairment based on the Veteran’s knee conditions. Based on the foregoing the Board finds the July 24, 2014 effective date for the Veteran’s TDIU appropriate. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, 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.