Citation Nr: 21027427 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 08-10 215 DATE: May 5, 2021 ORDER Entitlement to a rating in excess of 10 percent for severe chondromalacia patella and residuals of patellar tendon rupture, right knee is denied. Entitlement to a rating in excess of 10 percent for severe chondromalacia patella and residuals of patellar tendon rupture, left knee is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 19, 2019 is granted. FINDINGS OF FACT 1. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran's right knee disability has not manifested flexion to 30 degrees, extension to 15 degrees, dislocated or removed semi-lunar cartilage, or subluxation or instability. 2. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran's left knee disability has not manifested flexion to 30 degrees, extension to 15 degrees, dislocated or removed semi-lunar cartilage, or subluxation or instability. 3. The Veteran's service-connected disabilities produced total occupational impairment prior to June 19, 2019. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for severe chondromalacia patella and residuals of patellar tendon rupture, right knee are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257-5261. 2. The criteria for a rating in excess of 10 percent for severe chondromalacia patella and residuals of patellar tendon rupture, left knee are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257-5261. 3. The criteria for TDIU prior to June 19, 2019 are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Air Force from July 1970 to September 1992. The appeal originates from an April 2005 decision of a Department of Veterans Affairs (VA) Regional Office. The Veteran appeared for a hearing before the undersigned in April 2015. The Board notes that the Veteran has separate pending appeals which are not ready for adjudication at this time. The matter was remanded in September 2011, June 2018, and January 2021 to obtain VA treatment records, authorization for private treatment records, and examinations, as well as issuance of a Statement of the Case (SOC). The record shows that VA treatment records, private treatment records, and examinations were obtained (most recently as February 2021) and that an SOC was issued in June 2013. There has been substantial compliance with the Remand directives. 1. Entitlement to a rating in excess of 10 percent for severe chondromalacia patella and residuals of patellar tendon rupture, right knee. 2. Entitlement to a rating in excess of 10 percent for severe chondromalacia patella and residuals of patellar tendon rupture, left knee. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 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 32000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claims 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claims. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Codes 5003, 5258, 5259, 5260, and 5261 were not substantively changed. Diagnostic Codes 5010 and 5257 were substantively changed and are discussed in further detail below. The Veteran's right and left knee disabilities are rated under Diagnostic Code 5260 for limitation of flexion of the leg. A 30 percent rating requires flexion limited to 15 degrees. A 20 percent rating requires flexion limited to 30 degrees. Diagnostic Code 5003 addresses degenerative arthritis. Degenerative arthritis 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 (DC 5200 etc.). 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. In the absence of limitation of motion, rate as follows. A 20 percent rating requires X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Diagnostic Code 5010 addresses traumatic arthritis. Prior to February 7, 2021, traumatic arthritis substantiated by X-ray findings was rated as degenerative arthritis. From February 7, 2021, traumatic arthritis is 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. Diagnostic Code 5257 addresses other impairment of the knee. Prior to February 7, 2021, a 30 percent rating required severe recurrent subluxation or lateral instability. A 20 percent rating required moderate recurrent subluxation or lateral instability. A 10 percent rating required slight recurrent subluxation or lateral instability. From February 7, 2021, for recurrent subluxation or instability under Diagnostic Code 5257, a 30 percent rating requires unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating requires one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating requires 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. From February 7, 2021, for patellar instability under Diagnostic Code 5257, a 30 percent rating requires 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 . A 20 percent rating requires 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 10 percent rating requires 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. Diagnostic Code 5258 assigns a 20 percent rating for dislocated semilunar cartilage with episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 assigns a 10 percent rating for removal of symptomatic semilunar cartilage. Diagnostic Code 5261 addresses limitation of extension of the leg. A 50 percent rating requires extension limited to 45 degrees. A 40 percent rating requires extension limited to 30 degrees. A 30 percent rating requires extension limited to 20 degrees. A 20 percent rating requires extension limited to 15 degrees. A 10 percent rating requires extension limited to 10 degrees. A noncompensable rating is assigned when extension is limited to 5 degrees. Based on the evidence, including the January 2005, February 2017, April 2019, and February 2021 examinations, as well as the March 2015 private disability benefits questionnaire (DBQ), the Veteran is not entitled to ratings in excess of 10 percent for his knee disabilities. He has not had flexion to 30 degrees or extension to 15 degrees. At worst, he has had limitation of flexion to 90 degrees during flareups with 0 degrees of extension (normal), including consideration of passive use. Such does not nearly approximate limitation of motion required for an increased rating. There is also no basis for assigning a separate compensable rating based on limitation of extension. The Board notes that the March 2015 private DBQ indicates limitation of extension to 5 degrees bilaterally. However, the evaluator did not provide post-test range of motion measurements (repetitive use), which limits the probative value of the findings. It is also noted that limitation of extension to 5 degrees would warrant the assignment of a noncompensable rating. With respect to a meniscal condition, the Veteran has not been found to have dislocated or removed semilunar cartilage. Though he is service connected for residuals of patellar tendon ruptures for which he underwent surgery in October 1997, that procedure did not involve meniscal removal. Moreover, the February 2021 examiner specified that pain and limitation of motion were residuals of the procedure, and the present 10 percent rating was assigned based on arthritis with painful motion (that is not compensable as limitation of motion). As to arthritis, the Board notes that the knee constitutes a single major joint under the Rating Schedule. See November 2020 Appellate Brief. Applying the former rating criteria for Diagnostic Code 5010, the Veteran's arthritis (irrespective of degenerative or post-traumatic) would be rated under Diagnostic Code 5003, for which he has already been compensated with 10 percent ratings as previously noted. The revised criteria for Diagnostic Code 5010 also do not provide for an increased rating, as post-traumatic arthritis is rated as limitation of motion, dislocation, or instability, all of which are addressed in this decision. Consideration is given to the Veteran's assertion that he has knee instability warranting a separate rating. See November 2020 Appellate Brief. However, this is contradicted by his own reporting throughout the appeal. In January 2005, he offered no history of instability and the examiner found no evidence of instability. The March 2015 private DBQ states no history of instability. The February 2017 examination indicates no history of instability, and the Veteran denied having any problems or concerns not noted on the examination. The examiner found that stability testing was normal. The Veteran also denied a history of instability in April 2019 and again in February 2021, and objective evaluation was again negative for instability. The medical and lay evidence simply does not show instability warranting a separate rating under the former or revised criteria for Diagnostic Code 5257. The Court of Appeals for Veterans Claims has established that reports of flareups of symptomatology must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flareups has not been particularly clear. However, the Board finds overall wisdom in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Flareups must be quantifiable and result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flareup must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given to the Veteran's reports of experiencing flareups at various times during the appeal. The Board remanded the matter in January 2021 specifically for an examination addressing flareups. The February 2021 examiner reviewed the record, considered the examination findings and the Veteran's subjective complaints, and applied clinical knowledge and medical expertise in making findings as to ranges of motion during flareups. For the remainder of the appeal, the contemporaneous treatment records contain little, if any, findings pertaining to flareups much less information regarding the Veteran's functional ability during a flareup or after repeated use over time. Therefore, the Board finds that the currently assigned 10 percent ratings adequately contemplate the documented and reported functional limitation stemming from the left and right knee disabilities. Mitchell, supra. Accordingly, ratings in excess of 10 percent for the right and left knee disabilities are not warranted. 3. Entitlement to TDIU VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, to qualify for individual unemployability, 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). Prior to June 19, 2019, the Veteran was service connected for a mood disorder rated 30 percent disabling; chronic renal insufficiency rated 60 percent disabling; bilateral pes planus rated 10 percent disabling; lumbar spine arthritis with left radiculopathy rated 20 percent disabling; degenerative disc disease of the cervical spine rated 20 percent disabling; diabetes mellitus rated 10 percent disabling; a left foot disability rated 10 percent disabling; a right foot disability rated 10 percent disabling; a right knee disability rated 10 percent disabling; a left knee disability rated 10 percent disabling; noncompensable knee scars; and noncompensable allergic rhinitis. His combined rating was 90 percent. He met the schedular TDIU and criteria for eligibility under 38 C.F.R. § 4.16(a). The Veteran contends that he was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. See January 2016 VA 21-8940; May 2019 NOD. He completed two years of college. He was employed full-time as a mail processor until 2003 then worked full-time as a representative for a Veterans Service Organization until 2006. He claims that he resigned due to disability and could not work thereafter. Granting him the benefit of the doubt, the Board finds that the Veteran is entitled to TDIU prior to June 19, 2019. The February 2015 mental disorders examination notes depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. Due to his psychiatric symptoms, the Veteran had difficulty interacting with others and adapting to stressful circumstances. His renal disorder caused fatigue, while he experienced pain and difficulty with carrying, lifting, standing, and walking due to his musculoskeletal disabilities. These mental and physical limitations in combination likely precluded the Veteran from any form of substantially gainful employment consistent with his educational attainment and employment history. TDIU prior to June 19, 2019 is warranted. The Board is deferring assignment of the effective date for the Veteran's TDIU to the Agency of Original Jurisdiction (AOJ). The AOJ will have an opportunity to consider, in the first instance, the evidence pertinent to the assignment of the effective date. This will ensure that the effective date issue, if there is one, is properly considered. If the Veteran disagrees with the assigned effective date, he has the right to appeal to the Board. That said, effective from June 19, 2019, the Veteran has been in receipt of a combined total (100 percent) schedular rating. The assignment of a TDIU would be inappropriate. There is also no basis for finding that any single disability, in and of itself, would support the assignment of a TDIU. Rather, as discussed above, the Veteran's various service connected disabilities combine to result in his unemployability. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.