Citation Nr: 21031483 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 03-31 034 DATE: May 22, 2021 ORDER A rating in excess of 10 percent for service-connected degenerative arthritis of the left knee (hereinafter, "left knee disability") based upon limitation of motion is denied. A separate rating of 10 percent for left knee instability is granted from September 30, 2009, subject to the law and regulations governing the award of monetary benefits. REMANDED Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The record reflects that the Veteran's service-connected left knee disability has been manifested by painful motion but has not resulted in flexion limited to 30 degrees or less, nor extension limited to 10 degrees or more. 2. The record reflects the Veteran's service-connected left knee disability has been manifested by slight instability throughout the pendency of this appeal, to include the use of a knee brace. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected left knee disability based upon limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5260, 5261. 2. The criteria for a separate rating of 10 percent for left knee instability have been met from September 30, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1966 to March 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's appeal has a complex procedural history and included multiple issues as well as prior Board actions. However, these issues have been addressed such that only the claims for a higher initial rating for the left knee and entitlement to TDIU, are presently before the Board for appellate consideration. Service connection for a left knee disability was established by August 2016 rating decision and assigned an initial rating of 10 percent effective October 28, 2009. The Veteran appealed, contending an earlier effective date and higher rating(s) were warranted. By an April 2020 decision, the Board found that an effective date no earlier than September 30, 2009 was warranted for the establishment of service connection for the left knee. The Board remanded the higher rating claim for further development in July 2017 and April 2020. The Board previously determined in a July 2017 decision that the issue of TDIU had been raised by the record, and was part of the appeal, in accord with Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the claim for further development at that time, and again in October 2018 and July 2020. The Veteran provided testimony on his left knee claim at hearings before the undersigned Veterans Law Judge (VLJ) in November 2019 and December 2020. He also provided testimony on the TDIU claim in December 2020. Transcripts of both hearings are of record. At the December 2020 hearing the Veteran waived initial consideration of VA records by the agency of original jurisdiction (AOJ) that had been added since the case was last adjudicated below. Therefore, there is no prejudice to the Veteran with the Board proceeding with adjudication of this case. Entitlement to a rating in excess of 10 percent for service-connected left knee disability Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. As an initial matter, the Board notes that significant changes were made to the criteria for evaluating orthopedic disabilities under 38 C.F.R. § 4.71a, effective February 7, 2021. See 85 Fed. Reg. 76460 (Feb 7, 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. Therefore, the Board will consider the Veteran's claim 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. Prior to February 7, 2021, Diagnostic Code 5010 instructed the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under the revised criteria, Diagnostic Code 5010 applies only to post-traumatic arthritis, which is to be 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. Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003. Under this code, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes 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 and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). No changes were made to Diagnostic Codes 5256, 5258 to 5261, and 5263. There were changes to Diagnostic Codes 5257 and 5262. As discussed in greater detail below, the Board finds a separate rating of no more than 10 percent is warranted under both the old and revised versions of Diagnostic Code 5257. However, both the old and revised versions of Diagnostic Code 5262 is for evaluation of the tibia and fibula, and no such impairment is demonstrated by the service-connected left knee. Similarly, the required manifestations for evaluation under Diagnostic Codes 5256 (knee, ankylosis), 5258 (cartilage, dislocated, semilunar), 5259 (symptomatic removal of semilunar cartilage), and 5263 (genu recurvatum) are not applicable, as the presence of ankylosis of the left knee, dislocation or removal of the semilunar cartilage, or genu recurvatum have not been demonstrated. In pertinent part, VA examination in November 2011, March 2017, and June 2019 all found he did not have such impairment of the left knee; nor is such demonstrated by the medical treatment records. The Board notes that the Veteran's service-connected left knee disability is currently evaluated as 10 percent disabling based on painful motion. Knee disabilities manifested by limitation of flexion are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating is warranted for limitation of flexion to 45 degrees. A 20 percent rating is warranted for limitation of flexion to 30 degrees, and a 30 percent rating is warranted for limitation of flexion to 15 degrees. Knee disabilities manifested by limitation of extension are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5261. When there is limitation of extension of the leg to 5 degrees, a zero percent rating is assigned; when the limitation is to 10 degrees, a 10 percent rating is assignable; when the limitation is to 15 degrees, 20 percent is assigned; when extension is limited to 20 degrees, 30 percent is assigned; when extension is limited to 30 degrees, 40 percent is assigned; and when it is limited to 45 degrees, 50 percent is assigned. Full range of motion of the knee consists of zero (0) degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. When evaluating joint disabilities rated on the basis of limitation of motion, 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 by 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) has 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); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In this case, even considering the Veteran's complaints of pain, the record does not reflect that pain has resulted in his knee having flexion limited to 30 degrees or less or extension limited to 10 degrees or more. For example, an April 2009 VA examination showed the left knee had flexion to 120 degrees, with normal extension to zero degrees. There were no additional limitations after three repetitions of range of motion. The Veteran criticized this examination in a subsequent statement received in June 2010, including that the examiner forced the left knee beyond his normal range of motion. On a subsequent November 2011 VA arranged examination, the Veteran reported bilateral knee pain; and that he was unable to stand for long, to walk far, to kneel or squat, to climb, to perform yard work and home maintenance activities without severe pain and prolonged recovery. Further, on examination it was noted that he walked with an antalgic/abnormal gait due to knee pain. Range of motion testing showed the left knee had flexion to 90 degrees, with pain noted at the end of motion. He also had normal extension to zero degrees, with pain noted at 10 degrees. There was no change following repetitive testing. Moreover, the examiner stated that the left knee was not additionally limited by pain, fatigue, lack of endurance or incoordination after repetitive use. A March 2017 VA examination noted complaints of pain, but stated the Veteran did not report flare-ups. Range of motion testing showed flexion to 120 degrees, and extension to zero degrees. There was no pain with weight bearing, and no change with repetitive use testing. The examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Further, the examiner stated that it was impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups, or when the joint was used repeatedly over a period of time. At the most recent VA examination of the left knee in June 2019, the Veteran reported that he felt pressure in the knee, and that it pops and cracks. Further, he has limited standing and walking to 5 minutes at a time and limited stairs; and could not squat. Range of motion testing showed flexion to 90 degrees, and extension normal to zero degrees. Pain was noted in flexion. There was no change after repetitive use testing. The examiner stated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The functional ability of the left knee was additionally limited due to pain, fatigue, and lack of endurance with repeated use over time; and opined that it would result in flexion limited to 80 degrees, with extension still zero degrees. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner also stated the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-up because no flare-ups were reported at that examination. In addition, it was noted that passive motion was the same as active motion; that there was no pain on non-weight bearing; and there was pain with weight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board acknowledges the Veteran has reported pain and limited motion of the left knee at other times in the record, to include at his November 2019 and December 2020 hearings. However, he did not report any specific limitation of motion, including during flare-ups, that would warrant a rating in excess of 10 percent. Similarly, such impairment is not demonstrated in the medical treatment records on file. In light of the foregoing, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent for the left knee based upon limitation of motion. VA General Counsel held in VAOPGCPREC 9-2004 that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint. The precedent opinions of the VA General Counsel are binding on the Board. 38 U.S.C. § 7104. However, as indicated above, the record does not demonstrate that the Veteran has limitation of extension to the extent necessary to warrant a compensable rating under Diagnostic Code 5261. VA General Counsel also held in VAOPGCPREC 23-97 that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. General Counsel subsequently held in VAOPGCPREC 9-98 that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Where additionally disability is shown, a veteran rated under Diagnostic Code 5257 can also be compensated under Diagnostic Code 5003, and vice versa. Prior to February 7, 2021, Diagnostic Code 5257 provided that slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, while a 30 percent evaluation requires severe impairment. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating 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 warranted for 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, 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 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for 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. A 20 percent rating is warranted for a 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 30 percent rating is assigned for 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). Here, the Board notes that VA examinations in this case have all found there to be no evidence of instability or recurrent subluxation/dislocation of the left knee. Further, joint stability tests were all normal for the left knee on the November 2011, March 2017, and June 2019 VA examinations. Nevertheless, the Veteran has reported symptoms of left knee instability throughout this case. For example, at the April 2009 VA examination he reported that the left knee will give way. Treatment records from September 2014 note he reported his knees "get burning and get rubbery," and he felt like he might fall. Other records from that month reflect knee braces for both knees were placed, and he has continued use them as noted on the March 2017 and June 2019 VA examinations. Records from February 2016 note an incident where he reported his knees "gave way." He also reported his knee was unstable at the June 2019 VA examination, and at the November 2019 hearing. In light of the Veteran's contentions of recurrent giving way/instability of the left knee throughout the pendency of this case, and use of knee braces, the Board finds he is entitled to a separate rating of 10 percent under Diagnostic Code 5257 throughout the pendency of this appeal (i.e., from September 30, 2009). See English v. Wilkie, 30 Vet. App. 347 (2018). The Board further finds that a rating in excess of 10 percent is not warranted under either the old or revised versions of Diagnostic Code 5257. As already noted, the VA examinations have consistently found there to be no instability nor recurrent subluxation/dislocation; and joint stability tests were all normal on the VA examinations in 2011, 2017, and 2019. Therefore, the record reflects no more than slight instability, and does not meet or nearly approximate moderate instability; i.e., the record is consistent with instability that is no more than small in size, degree, or amount and does not meet or nearly approximate average or medium quantity, quality, or extent. As such, the preponderance of the evidence is against a rating in excess of 10 percent under the old version of this Code. In addition, the record reflects he has had no surgical treatment of the left knee. Thus, the preponderance of the evidence is against a rating in excess of 10 percent under the revised Code. For all these reasons, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for the left knee based upon limitation of motion. He is entitled to a separate rating of 10 percent based upon left knee instability, but no higher. REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities is remanded. In addition to his left knee, the Veteran is also service connected for a back disability evaluated as 20 percent disabling from October 28, 2009; right sciatic nerve impairment associated with the back disability, evaluated as 10 percent disabling from October 28, 2009, and 20 percent from June 11, 2009; and a right knee disability evaluated as 10 percent disabling from June 9, 2005. However, even with the Board's decision in this case that a separate 10 percent rating is warranted for left knee instability, his maximum combined rating is still 50 percent. See 38 C.F.R. § 4.25. Therefore, he does not satisfy the criteria for consideration of a TDIU on a schedular basis. 38 C.F.R. §§ 3.340, 4.16(a). However, a TDIU may also be awarded on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Where appropriate, the case can be referred to the Director of the Compensation Service for initial consideration of whether a TDIU is warranted on an extraschedular basis. In pertinent part, the Veteran has contended, to include at his December 2020 hearing, that he is unemployable due to the impairment attributable to his service-connected disabilities. In light of the October 2020 private vocational assessment and other evidence of record, referral to the Director of Compensation for initial consideration of a TDIU on an extraschedular basis is warranted. The matters are REMANDED for the following action: 1. Refer the case to the Director of the Compensation Service for consideration of whether TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) for any or all of the appellate period. 2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.