Citation Nr: 21030195 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-23 981 DATE: May 18, 2021 ORDER A 20 percent rating for right knee disability based on frequent episodes of locking, pain, and effusion is granted. A 20 percent rating for left knee disability based on frequent episodes of locking, pain, and effusion is granted. A 20 percent rating for right knee instability is granted. A 20 percent rating for left knee instability is granted. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is denied. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. . FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right knee disability has been productive of painful flexion limited at most to 60 degrees; full extension; no more than moderate instability; and frequent episodes of locking, buckling, pain, and swelling. 2. Throughout the appeal period, the Veteran's left knee disability has been productive of painful flexion limited at most to 70 degrees; full extension; no more than moderate instability; and frequent episodes of locking, buckling, pain, and swelling. 3. The Veteran's service-connected disabilities have prevented him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a separate 20 percent rating for the right knee based on frequent episodes of locking, pain, and effusion have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5258. 2. The criteria for a separate 20 percent rating for the left knee based on frequent episodes of locking, pain, and effusion have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5258. 3. The criteria for a 20 percent rating for the right knee based instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for a 20 percent rating for the left knee based instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257. 5. The criteria for a rating in excess of 10 percent for the right knee based on limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260. 6. The criteria for a rating in excess of 10 percent for the left knee based on limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260. 7. The criteria for a TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1980 to June 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a February 2017 video conference hearing. These matters were previously before the Board in December 2018. In 2018, the Board, in part, granted separate 10 percent ratings for right and left knee instability, and denied increased ratings greater than 10 percent for right and left knee degenerative joint disease and remanded entitlement to a TDIU. The Veteran appealed the Board's December 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court vacated and remanded the December 2018 Board decision to the extent it denied ratings in excess of 10 percent ratings for instability and degenerative joint disease. In June 2020 and October 2020, the Board remanded the appeal, to obtain a VA knee examination that complies with Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. A 20 percent rating for right knee disability based on frequent episodes of locking, pain, and effusion is granted. 2. A 20 percent rating for left knee disability based on frequent episodes of locking, pain, and effusion is granted. The Board finds that separate 20 percent ratings are warranted under Diagnostic Code 5258 to account for the frequent locking, buckling, pain, and swelling the Veteran experiences in his left and right knees. According to the rating schedule, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. The evidence shows that the Veteran experiences frequent episodes of locking, buckling, pain, and swelling in the left and right knees. See, e.g., VA examination (December 2020). Additionally, the Board notes that the Veteran has exhibited crepitus (including popping) in both knees knee during the appeal period. Id. Thus, the Board finds that separate 20 percent ratings are warranted under Diagnostic Code 5258 to compensate him for these symptoms. See 38 C.F.R. § 4.20; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that the evaluation of a knee disability under Diagnostic Codes 5257 and 5260 or 5261 do not preclude, as a matter of law, a separate evaluation under Diagnostic Code 5258). 3. A 20 percent rating for right knee instability is granted. 4. A 20 percent rating for left knee instability is granted. The Veteran seeks ratings in excess of 10 percent for instability of his left and right knees. He reports that his knees give way resulting in falls and that he regularly uses a cane and constantly wears a knee brace. See Board hearing (February 2017); VA examination (December 2020). The Veteran's wife and child echo his report of giving way and falling and report that his knees put him down for days at a time during flare-ups. See Statements (February 15, 2017). Under the former VA regulations, under 38 C.F.R. § 4.71a , Diagnostic Code 5257, slight recurrent subluxation or lateral instability was rated as 10 percent disabling, moderate recurrent subluxation or lateral instability rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warranted a 30 percent rating. The terms "mild," "moderate" and "severe" were not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board was to evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. Pursuant to the revised regulations, effective February 7, 2021, under 38 C.F.R. § 4.71a, contains two sections for rating other impairment of the knee. The first is for recurrent subluxation or instability. The second is for patellar instability. As to recurrent subluxation or instability, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear that causes 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 is assigned with 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 for ambulation, 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 10 percent rating is assigned for 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 or bracing for ambulation. As to patellar instability, 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 warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a , Diagnostic Code 5257, Note (1). 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). Id. Note (2). In applying the old regulations, the evidence demonstrates that the Veteran's right and left knee symptoms have been consistent with no more than "moderate" rather than "severe" recurrent subluxation or lateral instability. In this regard, the Board finds that consistent lay reports of numerous falls due to giving way are both competent and credible. Indeed, VA treatment records and examination reports also indicate that the Veteran regularly uses a cane and brace to aid with ambulation. See VATR (January 15, 2020); VA examination (April 2017). Despite lay evidence of regular falls due to instability and constant use of assistive aid for ambulation, the Board finds that the record does not evince severe instability as VA examiners have consistently found no objective evidence of instability on physical examination, to include joint stability tests, conducted throughout the appeal. See, e.g., VA examination (December 2020). In reaching this finding, the Board acknowledges that "nothing in [DC] 5257 provides that objective medical evidence is required or is to be favored over lay evidence." English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). In balancing the lay evidence of instability symptoms with the medical evidence of no instability, the Board finds that Veteran's disability picture does not more nearly approximate "severe" instability or subluxation. Under the revised rating criteria, the Veteran did not exhibit objective evidence of persistent instability caused by an unrepaired or failed repair of a complete ligament tear upon physical examination. For the purposes of determining the severity of the Veteran's knee instability, the Board finds that the results of the joint stability tests and lack of objective evidence weighs in favor of a 20 percent rating for "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." Furthermore, while the Veteran reports he experiences falling as a result of knee instability and has been prescribed bracing and a cane as an assistive device, the VA examinations did not show persistent instability due to an unrepaired or failed repair of complete ligament tear. Therefore, the Board finds that the preponderance of the evidence is against a disability picture that more nearly approximated a 30 percent rating under DC 5257 at any point during the appeal period. In sum, separate 20 percent ratings, but not more, for left and right knee instability are warranted. 5. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is denied. 6. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease is denied. The Veteran seeks ratings in excess of 10 percent for left and right knee limitation of motion, which are rated under Diagnostic Code 5260. The Board finds that the Veteran is not entitled to ratings in excess of 10 percent for his left and right knee limitation of motion because he has not shown a compensable limitation of flexion or extension at any point during the appeal period, even when accounting for functional loss during flare ups or with repeated use over time. Under Diagnostic Code 5260, limitation of flexion of the leg is rated 0 percent when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of extension of the leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. In evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Here, the Veteran is not entitled to a rating in excess of 10 percent for limitation of motion in his left or right knees because even after accounting for his reported functional loss during flare ups. In this regard, the Veteran did not exhibit any limitation of extension or a limitation of flexion to less than 60 degrees. During the most recent VA examination, in December 2020, at worst, the Veteran exhibited full extension and flexion limited from 140 to 80 degrees due to pain following repetitive use. Based on the Veteran's reported symptoms of functional impairmentto include swelling; stiffness; and pain during active, passive, and weightbearing teststhe December 2020 examiner estimated that the Veteran's range of flexion is limited to 60 degrees during flare-ups. The Veteran's VA examination reports consistently note stiffness, swelling, and pain during flare-ups. Lay evidence of record, to include statements from the Veteran and his family, indicate that he experiences additional limitation during flare-ups, namely he is off of his feet for days at a time during flare-ups. See, e.g., Statement from child (February 2017). Indeed, the Veteran told the December 2020 VA examiner that several times each month, he experiences flare-ups that last a couple of days, during which time, he cannot do anything and lays on the couch. The Board ascribes significant probative value to the examiner's estimation of the Veteran's limitation of motion during flare-ups, as such was predicated upon the lay evidence of record pertaining to his actual limitation during flares. In sum, the Board finds that the Veteran is not entitled to ratings in excess of 10 percent for left or right knee limitation of motion at any point during the appeal period. In making this determination the Board has considered the lay evidence indicating increased functional loss during flare-ups, and functional impairment in his ability to stand, walk, bend his knees, and perform activities of daily living. Given that he has exhibited no limitation of extension in either knee, the Board finds that his left and right knee symptoms have more nearly approximated the criteria for 10 percent ratings based on painful limitation of flexion throughout the appeal period. Indeed, as a compensable rating has been assigned based on flexion, the law precludes a second compensable rating based on painful extension limited to less than 5 degrees. Finally, the Board finds that the Veteran is not entitled to additional ratings under Diagnostic Codes 5256, 5259, 5262 or 5263. These diagnostic codes concern disabilities that involve ankylosis of the knee, symptomatic removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, and/or genu recurvatum. The evidence shows that he has not suffered injury at any point during the appeal period, nor is there any evidence that he has had surgical removal of his meniscus. Additionally, there is no objective evidence of ankylosis, a malunion or nonunion of the tibia or fibula, or genu recurvatum. Thus, he is not entitled to an additional rating under any of these diagnostic codes. 7. Entitlement to a TDIU is granted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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). In light of the Board's decision to grant separate 20 percent ratings for the frequent episodes of locking, pain, and effusion of the left and right knees and increase the Veteran's ratings for instability from 10 to 20 percent, the Veteran's combined disability rating satisfies the schedular criteria for a TDIU. Service connection is in effect for limitation of motion of the left ankle, rated 20 percent disabling; right knee limitation of flexion, rated 20 percent disabling; left knee limitation of flexion, rated 20 percent disabling; right knee instability, rated 20 percent disabling; left knee instability, rated 20 percent disabling; coronary artery disease, rated 10 percent disabling; and noncompensable ratings for hypertensive vascular disease, hearing loss, and a scar. VA will grant a total rating for compensation purposes based on unemployability 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. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, as noted above, the Veteran has a high school education and was last employed on March 30, 2013, by the postal service, delivering mail, a position which he held since January 1988. See VA Form 8940 (February 2017). In March 2020, a vocational expert opined that the Veteran's service-connected disabilities limit his ability to bend, stoop, or ascend stairs, thereby limiting his ability to follow even sedentary employment. See Brief (March 2021). The Board finds that the April 2017 VA examiner's opinion tends to support that of the vocational expert to the extent that the examiner found that the Veteran was unable to walk or stand more than 30 minutes due to his ankle disability. The Board finds that the Veteran's bilateral knee disabilities further limit his ability to consistently perform tasks necessary for sedentary employment. In this regard, the frequency, duration, and Severity all of his flare ups would likely result in frequent absenteeism. Additionally, the Veteran's employment experience is largely limited to physically demanding work consistent with mail delivery, a job which he performed for 25 years after service. When coupled with his limited education, the Board finds that his service-connected disabilities would preclude him from maintaining employment consistent with his education and occupational history. Accordingly, a TDIU is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.