Citation Nr: 21040848 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 13-25 476 DATE: July 7, 2021 ORDER A rating in excess of 20 percent for osteoarthritis of the right ankle on an extra-schedular basis is denied. REMANDED Entitlement to a rating in excess of 30 percent for left knee patellofemoral degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral degenerative joint disease is remanded. Entitlement to compensation for total disability based on individual unemployability (TDIU) due to service-connected disability prior to July 1, 2013, is remanded. Entitlement to special monthly compensation for housebound status or need for regular aid and attendance is remanded. FINDING OF FACT The weight of the evidence is against finding exceptional or unusual right ankle symptoms incapable of evaluation with the rating schedule. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for osteoarthritis of the right ankle on an extra-schedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1976 to July 1979. 1. A rating in excess of 20 percent for osteoarthritis of the right ankle on an extra-schedular basis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's right ankle disability has been rated under Diagnostic Code 5271, which provides for a maximum 20 percent rating for limitation of motion of the ankle. 38 C.F.R. § 4.71a. The Board denied entitlement to a rating in excess of 20 percent for osteoarthritis of the right ankle on a schedular basis in the February 2016 decision. The remaining issue is whether the Veteran should receive a rating for his ankle disability on an extra-schedular basis. In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court of Appeals for Veterans' Claims (Court) set out a three-part test for determining when extra-schedular ratings are appropriate, based on the language of 38 C.F.R. § 3.321(b)(1): (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. In Long v. Wilkie, 33 Vet. App. 167 (2020), the Court explained that the first step in Thun requires truly exceptional or unusual symptoms, which are incapable of evaluation by conventional rating means. Here, the Veteran has reported pain, swelling, stiffness, catching/locking, weakness, falls, and limitations in standing, walking, and physical tasks, such as working at the postal service and household chores. His wife and brother also reported observing his physical limitations and pain. The schedule for rating disabilities based on limitation of motion considers the functional effects of weakened movement, excess fatigability, incoordination, and pain. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Therefore, the Veteran's reports of impaired movement from stiffness, swelling, and pain, as well as weakness and incoordination leading to falls, are considered and contemplated by the rating he receives. Limitations in walking, standing, and other physical activities are common, usual effects of a musculoskeletal disability. Additionally, the Veteran and his wife have reported limitations in his ability to work, missing work, and limitations in driving from his ankle. The rating schedule provides for a conventional means to compensate for those types of impairment, as well, through unemployability and automotive adaptation. Finally, the Veteran, his wife, and his brother reported symptoms, such as depression and irritability, because of his ankle pain and the impacts of his physical limitations. They have also reported impaired sleep. The rating schedule provides for separate ratings for mental health and sleep disabilities, and the regulation provides for a method of establishing service connection for disabilities on a secondary basis. Accordingly, there is also a conventional means to obtain compensation for these symptoms and impairments, and the Board invites the Veteran to file a claim of service connection for any disability he believes is secondary to his ankle disability. However, the evidence does not show exceptional or unusual symptoms incapable of evaluation with the rating criteria. As the Board finds the schedular criteria are not inadequate to evaluate the Veteran's disability picture, the Board need not address the Veteran's contentions that his right ankle causes marked interference with employment. See Chudy v. O'Rourke, 30 Vet. App. 34, 39 (2018). An extra-schedular rating is not appropriate. See id; see also Long, 33 Vet. App. at 167. The Board notes that the prior Board remands referred the appeal to the Director, Compensation Service, who found extra-schedular ratings were not warranted for the right ankle disability. The Board observes that referral was based on the Veteran's assertions of entitlement to an extra-schedular rating, but upon further analysis, the Board finds the Veteran does not have an unusual or exceptional disability picture to warrant an extra-schedular rating. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for left knee patellofemoral degenerative joint disease is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee patellofemoral degenerative joint disease is remanded. Unfortunately, additional remand is necessary for the Veteran's knee disabilities. The Court in Correia found that for disabilities rated based on limitation of motion, an examination is inadequate if it does not consider "active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint" in accordance with 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The Veteran had VA examinations of his knees in March 2011, July 2013, August 2015, November 2016, and November 2019. The measurements provided in these examinations are presumably active, non-weight-bearing, meaning the Veteran manipulated the joint on his own while not bearing weight on it. None of the examiners provided measurements of passive range of motion or otherwise explained why such could not be provided. Additionally, several examiners found the Veteran experienced pain with weight-bearing but did not explain how such could affect the Veteran's range of motion. A new examination is needed to address passive range of motion and effects of pain with weight-bearing. Additionally, the Veteran endorsed flare-ups in symptoms during the July 2013 and August 2015 examinations. Neither of these examiners addressed how flare-ups could affect the Veteran's range of motion. In Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the Court reinforced the requirement that an examiner address the effects of pain and flare-ups on functional ability and held that an examiner must ascertain information about flare-ups through alternative means, including asking the Veteran to describe additional functional loss and estimating based on his reports, and only then after considering all the lay and medical evidence, can the examiner explain why he or she cannot render an opinion. On remand, the examiner should conduct a clinical interview with the Veteran about how his flare-ups presented in July 2013 and August 2015, consider the other evidence of record, and provide an opinion in compliance with the Court's holding in Sharp. 3. Entitlement to compensation for TDIU prior to July 1, 2013, is remanded. The Veteran has asserted that he has been unable to work because of his service-connected right ankle and knee disabilities since 2009. The Agency of Original Jurisdiction (AOJ) granted compensation for TDIU effective July 1, 2013, the date where his combined disability rating satisfied the requirements for TDIU. The Veteran's claim for TDIU is considered part and parcel of his claims for increased ratings for the right ankle and knees, which date back beyond July 2013. Accordingly, the issue of TDIU prior to July 1, 2013, remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). While generally a rating percentage threshold is required for TDIU compensation, extra-schedular consideration should be given in cases where the threshold requirements are not met, but either the appellant or the record suggests the veteran may be unable to secure and follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16(b). In such situations, the claim should be submitted to the Director, Compensation Service, for consideration. See id. As the ratings for the knees have not been finally determined, the Veteran may still meet the threshold requirements for TDIU during the period. If, however, he does not, the AOJ should submit the issue to the Director, Compensation Service, for consideration. 4. Entitlement to special monthly compensation for housebound status or need for regular aid and attendance is remanded. The Veteran is presumed to be seeking the highest compensation available for his knee disabilities, and he has asserted entitlement to special monthly compensation for housebound status or need for regular aid and attendance based, at least in part, on his knee disabilities. See January 2021 evidence submission. Therefore, the issue of entitlement to special monthly compensation is part of his appeal for the highest rating for his knee disabilities and remanded as intertwined. See A.B. v. Brown, 6 Vet. App. 35 (1993). The AOJ should obtain a VA examination addressing the criteria for housebound status and the need for regular aid and attendance. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a knee examination. The examiner should report all signs and symptoms necessary for evaluation of the Veteran's knee disabilities under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) on active motion and passive motion and considering the effects of pain with weight-bearing and nonweight-bearing. The examiner should specifically indicate whether the Veteran experiences any limitation of motion that is attributable to pain and at what point during the range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked to describe any limitations caused by pain during flares if reported currently and at the time of the July 2013 and August 2015 examinations and estimate that limitation in terms of degrees of range of motion. If the examination does not take place during a flare up, the examiner must glean information regarding the severity, frequency, duration, and functional loss manifestations of the flare ups from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so 3. Consider the claim of entitlement to TDIU prior to July 1, 2013, and refer the issue to the Director, Compensation Service, if appropriate. 4. Obtain a VA examination addressing the criteria for housebound status and need for regular aid and attendance. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.