Citation Nr: 21031718 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-20 789 DATE: May 24, 2021 ORDER An initial disability rating in excess of 10 percent for right knee degenerative joint disease with instability is denied. An initial disability rating in excess of 10 percent for right knee degenerative joint disease with limitation of motion is denied. For the appeal period prior to February 7, 2020, an initial 10 percent rating, but no higher, for a right ankle disability is granted. For the appeal period beginning February 7, 2020, a disability rating in excess of 10 percent for right ankle disability is denied. REMAND Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right knee degenerative joint disease with instability has not been manifested by more than slight recurrent laxity or subluxation. 2. For the entire rating period on appeal, the Veteran's right knee disability has been manifested by no worse than 105 degrees flexion, to include during repeated use over time; range of motion testing in extension has been normal throughout the rating period. 3. The Veteran's right ankle disability has been manifested throughout the appeals period by X-ray evidence of degenerative joint disease with painful motion. 4. The Veteran's right ankle disability degenerative joint disease has not been manifested by marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating higher than 10 percent for right knee degenerative joint disease with instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for entitlement to an initial disability rating higher than 10 percent for right knee degenerative joint disease with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 3. For the appeal period prior to February 7, 2020, the criteria for a 10 percent rating, but no higher, for a right ankle disability have been met as of the date of claim. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 4. For the appeal period beginning February 7, 2020, the criteria for entitlement to disability rating in excess of 10 percent for right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from January 1971 to January 1975. This matter was previously before the Board in July 2019 and again in October 2020. In October 2020, it was remanded for an updated medical opinion in compliance with Correia v. McDonald, 28 Vet. App. 158, 165 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2016), and for further development of the TDIU claim. Updated opinions on the Veteran's knee and ankle disabilities were obtained in December 2020 and complied with the remand instructions. The Board finds that no further development is necessary to render a decision on the increased rating claims. The Board finds that the development of the TDIU claim raised the issue of entitlement to TDIU on an extraschedular basis, which must be addressed on remand. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 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 § 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 (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 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 [or 4.73] criteria."). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The relevant rating criteria include Diagnostic Code 5010, which instructs the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, 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 elbow is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a , Diagnostic Codes 5260, 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As it pertains to recurrent subluxation or instability of the knee, the Board observes that the schedular criteria for evaluating disabilities of the knee have undergone revision during the pendency of this appeal. Specifically, an amendment to Diagnostic Code 5257 was made effective February 7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Because these changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's service-connected right knee disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110 (g). Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a , Diagnostic Code 5257. 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). See DC 5257 (Effective February 7, 2021). Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). VA's General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004 ; 69 Fed. Reg. 59,990 (2004). Right Knee Disabilities The Veteran seeks a higher initial rating for his right knee disabilities, specifically instability and limitation of flexion, which are each rated as 10 percent disabling. He has asserted that a higher rating is warranted because he is unable to stand or walk for long periods of time without pain and he experiences frequent episodes of giving way in the knee which cause him to stumble. The evidence regarding limitation of motion does not show limitation of flexion to less than 30 degrees as to warrant a rating in excess of 10 percent under DC 5260. The greatest limitation of motion recorded on examination or treatment was during a treatment visit at VA in December 2014, when he had only 98 degrees of flexion. (See CAPRI, 10/15/2015); see also VA examinations dated in February 2014, December 2015, and February 2020 (showing flexion limited to, at worst, 105 degrees, to include during repeated use over time). These findings are well in excess of the 30 degrees needed to support a higher disability rating. The Board notes that any previous oversights with respect to Correia and Sharp have been remedied by the December 2020 opinion, which noted that passive range of motion findings would be the same as active range of motion findings because pushing the joint testing beyond the passive range would be "medically contraindicated." The Board acknowledges that the Veteran exhibited painful motion with weight-bearing and with non-weight-bearing and reported constant levels of pain with occasional pain flare-ups. The Veteran has also been shown to have normal extension of the right knee. The Board recognizes the Veteran's reports of continued right knee pain as explained in the VA examination reports discussed above. The Board considered this knee pain, as well as any additional limitations of motion due to pain (including difficulty with prolonged walking and kneeling). However, even considering additional limitation of motion or function of the knee due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the right knee more nearly approximates the criteria for higher ratings. Repetitive-use testing during the VA examination discussed above showed limitation in flexion, at worst, to 105 degrees. As such, even considering the Veteran's complaints of pain and flare-ups, the Board finds that the severity of the Veteran's right knee disability does not more nearly approximate a higher rating. For these reasons, a rating in excess of 10 percent for each knee under Diagnostic Code 5260 and 5261 is not warranted. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5259 (symptomatic removal of semilunar cartilage), 5262 (tibia and fibula impairment), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of those conditions. 38 C.F.R. § 4.71a , Diagnostic Codes 5256, 5259, 5263. With respect to the Veteran's claim for a rating in excess of 10 percent based on instability of the right knee joint, the Board finds that this claim must also be denied. The Veteran has documented evidence of instability from the February 2014 Disability Benefits Questionnaire (DBQ), from a March 2019 treatment note (see CAPRI, 04/20/2020), and from the VA examination in February 2020. However, the DBQ described the instability as slight in nature. Notably the examiner in February 2014 described the Veteran's instability as slight. In addition, the February 2020 VA examiner described instability of station and subjective sensations of give way weakness but marked instability has not been noted at any point during the appeals. As such, entitlement to a disability rating greater than 10 percent has not been shown. 38 C.F.R. § 4.71a. As it pertains to the rating period effective February 7, 2021, the Board has considered the rating criteria under the current diagnostic code. Effective February 7, 2021, Diagnostic Code 527 provides for a 20 percent rating for a knee 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 20 percent rating may also be assigned for patellar instability when there is 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 In this case, the Board finds that a rating in excess of 10 percent for instability of the right knee disability is not warranted under the amended rating criteria effective February 7, 2021. In this regard, the evidence does not show that the Veteran has "persistent instability" in the right knee as contemplated under the 20 percent rating criteria. In this regard, although slight instability was shown in the 2014 VA examination, following VA knee examination reports noted a lack of instability in the knee. The Board find that this does not more nearly approximate persistent instability. The Veteran has not been found to have recurrent instability after surgical repair of a diagnosed patellofemoral condition. As such, ratings in excess of 10 percent under both the earlier and revised DC 5257 are not warranted. Right Ankle Disability The Veteran seeks a higher disability rating for his right ankle degenerative joint disease or arthritis. Initially, a noncompensable (0 percent) disability rating was assigned prior to February 7, 2020, with a 10 percent disability awarded thereafter. In his Notice of Disagreement, the Veteran specifically asserted that he should be awarded at least 10 percent based on X-ray evidence of arthritis and painful motion. Under Diagnostic Code 5010, arthritis due to trauma substantiated by X-ray findings is rated under Diagnostic Code 5003 as degenerative arthritis. Under Diagnostic Code 5003, degenerative 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 there is some limitation of motion of the specific joint that is noncompensable under the appropriate diagnostic codes, a rating of 10 percent for each such major joint affected by limitation of motion is assigned. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5271 provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a. The Board notes that regulations regarding limitation of motion of the ankle changed effective February 7, 2021. The assigned percentages remained the same for the disabilities, with the ankle disabilities still being described as either moderate (warranting a 10 percent disability evaluation under DC 5271) or marked (warranting a 20 percent disability under DC 5271). The new regulation defines moderate as less than 15 degrees dorsiflexion or less than 30 degrees of plantar flexion. It defines marked as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. These regulations are not retroactive. Actually painful, unstable or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The February 2014 DBQ noted that the Veteran had full range of motion in his right ankle, with 45 degrees of plantar flexion and 20 degrees of dorsiflexion, and no objective evidence of painful motion. There was no additional limitation of motion after repetitive testing. The Veteran reported experiencing pain flare-ups about twice a week with associated swelling, with episodes lasting several hours at a time and impeding his mobility. The Veteran's right ankle functional impairment was impacted by weakness, fatigability, and incoordination. The examiner noted that the ankle disability made it difficult for the Veteran to perform physical activity after repetitive motion over time, but the examiner was unable to provide an estimate of any resulting limitation of motion. The Veteran experienced pain with palpation and X-rays showed evidence of arthritis and enthesopathy. A June 2014 VA examination noted that the Veteran had dorsiflexion to 15 out of 20 degrees and plantar flexion to 40 out of 45 degrees, with no objective evidence of pain. In addition, he showed a slight reduction of muscled strength in both dorsiflexion and plantar flexion. The evidence of the 2014 DBQ and VA examination show that the Veteran had X-ray evidence of arthritis in his right ankle from the date of his initial claim. In addition, he reported experiencing subjective pain with motion and the June 2014 VA examination showed an actual loss of range of motion, both dorsiflexion and plantar flexion. The Board finds that this evidence is sufficient to warrant a 10 percent rating for the entire appeal period prior to February 7, 2020, under 38 C.F.R. § 4.59, particularly when the benefit of the doubt is applied in favor of the Veteran. The Board next finds that a rating in excess of 10 percent for the right ankle disability is not warranted for the entire rating period on appeal. Assignment of a 20 percent disability rating would require a showing of marked limitation of motion or less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. On VA examination, the greatest limitation of motion was in February 2020, with 10 degrees of dorsiflexion (with 20 degrees being normal) and 30 degrees of plantar flexion (with 45 degrees being normal). This limitation is moderate, rather than marked, representing only a reduction by half in dorsiflexion and by one third in plantar flexion. As such, entitlement to a 20 percent disability rating is not demonstrated. 38 C.F.R. § 4.71a. REASONS FOR REMAND TDIU The Veteran is currently assigned a combined disability rating of 50 percent, based on disabilities of the back, knees, and ankles. The record shows that he is not currently employed and is receiving Social Security Disability Insurance benefits based on these same disabilities. T his matter was previously remanded for further development under Rice, which holds that entitlement to TDIU is an inherent part of any increased disability claim. Moreover, once the issue of entitlement to TDIU is part of the claim, it remains a part of the appeal without requiring separate action by the Veteran. See Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). While the Veteran did not complete and return a TDIU claim form questionnaire, the evidence received during the remand portion raises a clear case for entitlement to TDIU. In particular, records received from Social Security show that the Veteran has only a high school education and his only work experience is in manual labor as a custodian or a house painter, both professions which are precluded by his physical disabilities. However, because the Veteran's combined disability rating is only 50 percent, the threshold for a schedular TDIU rating has not been met, and the question becomes one of entitlement to TDIU on an extraschedular basis. 38 C.F.R. § 4.16. The Board does not have jurisdiction over this question in the first instance and referral to the Director of Compensation Services is required. The matter is REMANDED for the following action: 1. Request that the Veteran complete a VA Form 21-8940 application for TDIU. Inform the Veteran that his cooperation on this matter may be crucial to determining entitlement to benefits, to include providing information as to the last date of employment. 2. Once the Veteran has completed and returned the VA Form 21-8940 or has been given sufficient opportunities to do so, the claim should be referred to the Director of Compensation Services for consideration of entitlement to TDIU on an extraschedular basis. Evidence and information as part of the referral should include the Social Security disability decision regarding the Veteran's inability to work as a result of back, knee, and ankle disabilities, which are service-connected, and information on the Veteran's work history and education level. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.