Citation Nr: 21028342 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 12-10 975 DATE: May 11, 2021 ORDER A rating in excess of 20 percent for instability of the left knee, status-post arthrotomy with residual scar, is denied. A separate 10 percent rating, but no higher, for left knee degenerative arthritis with painful limitation of motion is granted. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's left knee instability has not more nearly approximated severe lateral instability of the knee or unrepaired or failed repair of complete ligament tear causing persistent instability. 2. The Veteran's left knee arthritis disability has been manifested by pain with extension limited to, at worst, 10 degrees, and with flexion, at worst, limited to 70 degrees, but without a meniscal condition. 3. The Veteran does not meet the scheduler criteria for a TDIU. 4. The Veteran's service-connected disabilities are not shown to result in an inability to obtain or maintain substantially gainful employment so as to warrant consideration of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for instability of the left knee, status-post arthrotomy with residual scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (2020). 2. The criteria for a separate rating of 10 percent, but no higher, for left knee arthritis with painful limitation of motion are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2020). 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to October 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously remanded for further development by the Board in September 2016, March 2018, February 2020, and November 2020. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 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 38 C.F.R. § 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; a separate or higher rating under 38 C.F.R. § 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 criteria."). The Board notes VA revised the rating criteria for evaluating knee disorders, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Generally, the amended rating criteria, if favorable to the Veteran's claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the old rating criteria for DC 5257, an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability, an evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. Under the new rating criteria for DC 5257 and effective February 7, 2021, a 10 percent rating is assigned 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 assigned for 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; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es) walker) or bracing for ambulation. A 30 percent rating is assigned for an 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. Facts The Veteran submitted an August 2010 claim for a left knee rating in excess of 20 percent. The Veteran submitted an October 2010 statement in which he reported extreme pain and instability in the left knee. The Veteran was afforded a December 2010 VA examination in which he reported left knee symptoms of weakness, stiffness, swelling, heat, giving way, lack of endurance and pain. He stated he has flare-ups, including pain at a severity level of 10 out of 10. He reported he cannot squat, kneel, carry weights, or go up the stairs and has difficulty with prolonged standing and walking. The examiner indicated the left knee showed no signs of instability, weakness, tenderness, guarding or subluxation. Testing revealed flexion limited to 120 degrees and normal extension. An associated December 2010 x-ray showed osteoarthritis, an old cruciate ligament injury and patellar osteophytes. The Veteran submitted a May 2011 statement in which he reported that his left knee disability had worsened. Additionally, in the April 2012 substantive appeal, the Veteran stated his left knee causes discomfort in his everyday life. He reported he experiences symptoms of knee "popping," swelling, as well as difficulty with kneeling and with prolonged sitting. The Veteran was afforded a December 2013 VA examination in which he reported flare-ups, including pain with limitation of standing duration, ambulation distance, stairs, and squatting/kneeling. Flexion was limited to 120 degrees. Instability was not noted, and the Veteran required no assistive devices at that time. Further, no additional limitation of functional ability was indicated during flare-ups or with repetition. A July 2016 appellate brief was submitted in which the representative asserted the Veteran has experienced an increase in the severity of his left knee disability and progression in his symptomatology. The claim was remanded by the Board in September 2016 for further development, including a VA examination to determine the severity of the left knee disorder. The Veteran was afforded an October 2016 VA examination in which he reported flare-ups, including knee pain with standing, ambulating, prolonged sitting, squatting, kneeling, and running. Testing showed flexion limited to 90 degrees with pain during testing. Left knee instability was not found; however, the examiner indicated the Veteran requires the regular use of a brace to assist "stability" during standing, ambulating and pivotal tasks. The examiner reported the examination was performed during a flare-up and flexion was not further reduced beyond 90 degrees. Evidence of pain with weight bearing was noted by the examiner. Further, the examiner submitted a March 2017 VA opinion in which he opined the Veteran's left knee post-surgical meniscectomy is related to his limitations regarding standing, ambulating, sitting and with range of motion. The claim came before the Board in March 2018 and was remanded for a VA examination to assess the severity of the left knee disability. The Board directed the examiner to address range of motion measurements for active and passive motion, and with weight-bearing and non-weight bearing circumstances, per Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was afforded a July 2019 VA examination. At that time, the Veteran reported that he walked with a "stiff leg" and could no longer do prolonged activity. He also reported that his knee "sometimes gives away." Specific flare-ups were not reported. Objective left knee instability was not found. Flexion was limited to 70 degrees with repeated use over time. There was no evidence of pain with weight bearing or with non-weight bearing. Thereafter, the Veteran submitted a December 2019 statement in which he reported his left knee continued to worsen and he is in constant pain. He stated his pain forces him to walk with his left knee locked and he could no longer perform outside chores and duties. The claim was remanded by the Board in February 2020 for another VA examination, as it determined the July 2019 VA opinion did not satisfy the range of motion requirements from Correia. The Veteran was afforded a March 2020 VA examination in which he reported flares, including pain that can become severe to 10 out of 10. The Veteran reported he is forced to stop all activities and rest due to his pain. The symptoms found during the examination are similar to prior examinations, including no instability, subluxation or ankylosis of the left knee. The examiner noted the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups. He indicated pain causes functional loss with flare-ups, and range of motion reduced flexion to 85 degrees and extension limited to 10 degrees. The examiner reported the Veteran requires the occasional use of crutches due to his left knee pain. The claim was further remanded in November 2020 by the Board which determined the March 2020 examiner, similar to the previous VA examination reports, failed to fully provide the critical range of motion measurements required in Correia. Additionally, the Board noted the new VA examiner should address the impact the Veteran's flares have with regard to additional functional loss caused. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board notes the Veteran submitted a January 2021 statement in which he reported that he continues to require the use of crutches due to his left knee disability and can put little to no weight on it. He stated he cannot fully straighten his knee. The Board notes a November 2020 VA treatment record also indicated the Veteran requires the use of crutches. The Veteran was afforded a January 2021 VA examination in which no flare-ups were reported. The functional impact was stated as limitation with standing, ambulating duration, stairs, squatting and kneeling, with no running. Range of motion testing revealed flexion limited to 100 degrees with pain noted during testing causing functional loss. Left knee instability and subluxation were not found, and no ankylosis. Evidence of pain with weight bearing was indicated, as well as pain on non-weight bearing testing. Further, the examiner indicated there is objective evidence of pain during passive range of motion testing. He stated the Veteran requires the constant use of crutches to assist with stability and support during standing and ambulating. Analysis After a careful review of the evidence, the Board finds a rating in excess of 20 percent is not warranted for the left knee disorder. The Board specifically finds the post-remand January 2021 VA examination report satisfies the requirements for testing pain on both active and passive motion, and in weight-bearing and nonweight-bearing, per Correia, as well as with regard to the Veteran's reported flare-ups, per Sharp, which were not reported during the examination. The Board notes throughout the appeal period, the Veteran's left knee disability has caused severe pain, as well as difficulty with prolonged sitting, standing and walking. He has also experienced instability of the knee which has led to the regular use of crutches for assistance. However, the symptoms found in the medical evidence and reported by the Veteran do not support an increased rating to 30 percent under DC 5257, under either the old or new rating criteria. Pursuant to the old rating criteria, the Veteran's symptoms did not approximate severe recurrent subluxation or severe lateral instability suggestive of a 30 percent rating. 38 C.F.R. § 4.71a, DC 5257. The Board notes the medical evidence, including VA examination reports dated December 2010, December 2013, July 2019, and January 2021, found the left knee showed no signs of instability or subluxation during testing. The Board acknowledges the Veteran's reported instability during the appeal period and required use of crutches, including in a recent January 2021 statement. The Board determines, however, that the Veteran's left knee instability is moderate, and the symptoms do not suggest severe recurrent subluxation or lateral instability. As such, an increased rating under the old DC 5257 is not warranted. From February 7, 2021, under the new rating criteria for DC 5257, the Board finds the evidence also does not suggest an increased rating to 30 percent. The Veteran has continually reported worsening left knee symptoms which impact his activities of daily living. However, the symptoms noted have not approximated an unrepaired or failed repair of complete ligament tear causing persistent instability, as well as a medical provider prescribing both crutches and bracing for ambulation. The use of crutches for stability is noted, including in a November 2020 VA treatment record, January 2021 Veteran's statement and the January 2021 VA examination report. However, there is no indication a medical provider has prescribed him a brace to assist with ambulation. In sum, the Board finds that the Veteran's currently assigned 20 percent rating under Diagnostic Code 5257 adequately consider the Veteran's instability symptoms. Notably, medical testing did not show any objective evidence of anterior, posterior, medial, lateral instability, or recurrent subluxation in the left knee. Accordingly, the Board finds that the Veteran's subjective reports of giving way and instability are adequately considered in the currently assigned 20 percent evaluations. Thus, an increased rating under the new rating criteria for DC 5257 is not warranted. That notwithstanding, and upon review of the evidence of record, the Board finds that a separate 10 percent rating is warranted for the entire appeal period for left knee arthritis with painful motion under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. The medical evidence of record clearly demonstrates that the Veteran has degenerative arthritis in the left knee. Moreover, the VA examination reports of record indicated that the Veteran displayed limitation of flexion and extension of the left knee to, at worst, 70 degrees. Extension has been limited to, at worst, 10 degrees. In light of the fact that the Veteran has a diagnosis of left knee arthritis, with limitation of flexion to a noncompensable degree under the relevant Diagnostic Code, the Board finds that a 10 percent rating is warranted for arthritis of the left knee with painful limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010 for the entire appeal period. The Board further finds that separate or higher ratings for limitation of motion of the left knee in flexion or extension are not warranted. The VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint. VAOPGCPREC 9-2004. Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. The limitation of flexion and extension must be compensable in both planes in order to warrant separate ratings. The Veteran's limitation of motion in the left knee has not demonstrated compensable limitation of motion in both flexion and extension to warrant higher or separate ratings in excess of 10 percent. The Board has also considered whether the Veteran is entitled to a separate or increased rating, to include based on left knee ankylosis, impairment of the tibia or fibula, and/or genu recurvatum. However, the evidence of record fails to demonstrate such symptoms, or the Veteran is already being compensated for the symptomatology under DC 5257. The Veteran has also not been shown to have a meniscus condition; as such, separate ratings under DC 5258 or 5259 is not warranted. Moreover, compensating the Veteran for duplicative or overlapping symptomatology should be avoided due to the rule against pyramiding. See 38 C.F.R. § 4.14. The Veteran's left knee scar has also been shown to be asymptomatic; accordingly, a separate rating is not warranted. Additionally, the Board notes that the earlier VA examination reports during the appeal period were found to be not wholly adequate in addressing any additional functional loss caused during flare-ups, and with passive motion, weightbearing and non-weightbearing. See Correia, 28 Vet. App. at 158; See also Sharp, 29 Vet. App. at 33. Although the Board is cognizant of Correia and Sharp, it determines another remand for a retrospective medical opinion is not required. In this respect, as noted above, the claim has been remanded several times to obtain an adequate opinion and an additional opinion with regard to additional functional loss dating back to August 2010, would at this point amount to pure speculation on the part of the examiner. The Board points out that the Court in Correia stated "its decision today will be taken as requiring the range of motion testing listed in the final sentence of § 4.59 in every case in which those tests can be conducted." Here, all range of motion measurements provided by the VA examiners during the appeal period were performed under active, weight-bearing motion. Thus, any further retrospective opinion would merely impose an additional burden on VA with no benefit flowing to the Veteran, as VA would be asking an examiner to speculate as to the prior ranges of motion. As addressed above, the Board finds that the most recent January 2021 VA examination is adequate for rating the service-connected left knee disability. In sum, the Board determines the preponderance of the evidence is against a rating in excess of 20 percent for the left knee disability, to include his instability of the left knee. The Board further finds that the criteria for a separate rating of 10 percent, but no higher, for left knee arthritis with painful limitation of motion is granted. TDIULaws and Analysis VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. 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, there shall 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, and even with consideration of the additional 10 percent rating awarded herein, the Veteran's service-connected disabilities do not meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16 (a). Accordingly, the Board finds that entitlement to a TDIU is not warranted on a schedular basis. Nevertheless, the Board must consider whether the evidence warrants referral to the Director of Compensation Service for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16 (b). See Bowling, 15 Vet. App. at 6. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Board has considered whether referral for consideration of an extraschedular evaluation is warranted at any time during the appeal, and finds that it is not. The Veteran asserts that his service-connected knee disabilities have prevented him from performing all substantially gainful employment. Notably, the Veteran has not submitted a VA Form 21-8940, despite several requests. In the March 2018 decision, the Board found the claim for a TDIU was raised per Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board directed the Regional Office (RO) to provide the Veteran with appropriate notice of how to substantiate his claim for a TDIU, to include providing him with a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. Pursuant to this request, the RO sent the Veteran a December 2018 letter which provided this form, along with the VA Form 21-4192 Request for Employment Information in Connection with the Claim for Disability Benefits. The claim for a TDIU was again remanded by the Board in November 2020 to include providing the Veteran with another VA Form 21-8940 and VA Form 21-4192, needed to substantiate the claim. Pursuant to this request, the RO sent the Veteran a November 2020 which included these forms. As noted, a TDIU Form 21-8940 has not been submitted by the Veteran. When last remanding the Veteran's claim in November 2020, the Board directed the RO to request that the Veteran complete an updated VA Form 21-8940 outlining his work history in detail, along with other pertinent information, as well as a VA Form 21-4192 to verify employment and employment history. The Board notes as early as an October 2010 statement, the Veteran reported he could no longer perform the duties of his job as a sheet metal mechanic. However, he later reported that he retired in January 2020. These inconsistencies in the record show the importance of the completed VA Form 21-8940 and VA Form 21-4192. The Veteran was provided with these forms by the RO twice, in December 2018 and November 2020, and requested to return them; however, he failed to do so. The Board notes that mere employment does not necessarily preclude entitlement to a TDIU if such employment is not gainful. However, the evidence is unclear as to the Veteran's dates of employment and his yearly income throughout the rating period on appeal. A VA Form 21-8940 contains information on the types of employment, dates of employment, income, and education necessary to the adjudication of entitlement to a TDIU. As the Veteran has not submitted this information, the Board does not have all necessary information regarding the status of the Veteran's current employment, education, and income . In other words, there is insufficient information as to when the Veteran left employment due to his service-connected disabilities and insufficient evidence of the Veteran's income during his periods of employment. The duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment at any time during the course of the appeal. As such, the Board finds that remand for referral of consideration of a TDIU on an extraschedular basis is not required. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Isaacs, 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.