Citation Nr: 21030876 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-34 694 DATE: May 19, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for left knee osteoarthritis is denied. Entitlement to an initial disability rating in excess of 10 percent for right knee osteoarthritis is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Range of Motion testing of the left knee during the appeal period was documented at worst flexion to 120 degrees and extension to 0 degrees. 2. Range of Motion testing of the right knee during the appeal period was documented at worst flexion to 130 degrees and extension to 0 degrees. 3. The Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, considering his educational and employment background. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of left knee flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 10 percent for limitation of right knee flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5260. 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for a total disability rating based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty with the United States Navy from February 1993 to February 2003, and from October 2008 to January 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement (NOD) contesting the initial evaluation assigned for his knees. In May 2018 the RO issued a rating decision which recharacterized the bilateral knee disability to two separate issues and assigned a 10 percent disability rating for each effective March 29, 2013. The Veteran attended a Board hearing in September 2019. This Veteran's claim was remanded in November 2019 for a further development. This matter is now properly before the Board. Entitlement to an initial disability rating in excess of 10 percent for left knee osteoarthritis is denied. Entitlement to an initial disability rating in excess of 10 percent for right knee osteoarthritis is denied. The Veteran contends that he is entitled to an initial disability rating in excess of 10 percent for his left and right knee osteoarthritis. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's disability is currently rated under Diagnostic Code 5260. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Codes 5258-5261 were not changed. The appropriate diagnostic codes for rating limitation of motion of the knee 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 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. The Veteran's left knee disability is assigned an initial 10 percent disability rating under Diagnostic Code (DC) 5010-5260 for limitation of flexion. The Veteran has also been assigned a 10 percent disability rating for his right knee disability under DC 5010-5260. The Board finds that the Veteran's disability is most appropriately rated under DC 5260. The Board has considered other diagnostic codes related to impairment of the knee, however, finds that another diagnostic code would not afford the Veteran a higher disability rating considering the regulations prior to February 7, 2021 and thereafter. In August 2020, the Veteran was afforded a VA examination. The Veteran's right knee flexion range of motion was found to be 135 degrees. The Veteran's left knee flexion range of motion was found to be 130 degrees. The August 2020 examiner determined that the Veteran is able to perform repetitive use testing with at least three repetitions on left and right knee. The August 2020 examiner determined that the examination was medically consistent with the Veteran's statements describing functional loss during flare ups. Factors that contribute to the Veteran's functional loss were pain and fatigue and flexion described as range of motion flexion to 70 degrees and extension to 0 degrees in the left and right knee. Joint stability testing was also performed on the left and right knee. On the right knee joint stability was normal. On the left knee joint stability testing was performed and anterior instability was found to be 1 millimeter. In the Veteran's August 2018 VA examination, the Veteran's right knee flexion was found to be 130 degrees. The Veteran's left knee flexion range of motion was found to be to 120 degrees. The Board finds that the Veteran's range of motion has not decreased since his August 2018 VA examination. The Board finds that the August 2020 VA examiner is competent, credible and the examination is highly probative, and it has met the Correia criteria for range of motion testing. The Board has sympathetically considered the Veteran's claim, reviewed all medical and lay statements and finds that there is no additional evidence supporting a finding that the Veteran's left and right knee osteoarthritis has worsened to prompt an increased disability rating. Therefore, the Board finds that a preponderance of the evidence is against finding that the Veteran is entitled to an increased disability rating for his left and right knee osteoarthritis. TDIU The Veteran contends that he is entitled to TDIU. A total disability rating for compensation purposes may be assigned when the Veteran 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, or if there are two or more disabilities, there shall be at least one 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). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by non-service-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term unemployability as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (DEC. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for a TDIU, the Board may not reject the claim without producing evidence, as distinguishing from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Frisca v. Brown, 7 Vet. App. 294 (1995). Here, the Board finds that the Veteran is marginally employed because he is limited to working 20 hours per week. His part time job hired him under a disabled veteran's program. He works with limitations imposed by the Department of Labor-OWCP. Therefore, the Veteran does have protected employment, which is considered marginal for TDIU purposes. Furthermore, the Veteran meets the schedular requirements as he has at least one disability rated more than 40 percent, Sleep Apnea rated at 50 percent disabling and enough additional disabilities to be rated at least 70 percent disabling under 38 C.F.R. § 4.16(a). Special Monthly Compensation (SMC) "S" The issue of special monthly compensation was raised by the Veteran's representative in March 2021. The Veteran was previously granted SMC from June 27, 2016 to August 1, 2016. Here, the Board must consider whether the Veteran is entitled to SMC (S) as it has now been raised by the Veteran's representative. Entitlement to SMC is an "inferred issue" in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue. There is no prejudice to the Veteran in the Board considering entitlement to SMC in the first instance, as eligibility for this benefit turns solely on the application of law. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that where the Board addresses a question that has not been addressed by the AOJ, the Board must consider the potential for prejudice to the appellant). SMC is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 . In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that there could be a situation where a veteran had a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability or disabilities in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate). See 38 U.S.C. § 1114(s). Moreover, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. Bradley essentially requires that VA consider a TDIU claim despite the existence of a schedular total rating if VA finds the separate disability supports a TDIU independent of the disability that is rated 100 percent. Id. at 294. Here, the Board finds that the Veteran is not entitled to SMC (s) as he does not meet the statutory housebound requirements pursuant to 38 C.F.R. § 3.350(i)(1). The Veteran does not have at last a single 100 percent rating and separate and distinct disabilities independently ratable at 60 percent. While the Veteran is currently granted TDIU rating, the Veteran does not have an additional disability of 60 percent or more. Furthermore, the Veteran is currently working part time, where he leaves his home. There are no facts supporting that the Veteran is permanently confined to the place of residence or immediate premises or institution because of service-connected disabilities. Therefore, the Board finds a preponderance of the evidence is against finding the Veteran entitled to SMC (s). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.