Citation Nr: 22015377 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-38 462A DATE: March 17, 2022 ORDER Entitlement to service connection for instability of the right knee is granted. Entitlement to service connection for instability of the left knee is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) from January 10, 2020 through March 17, 2021, is granted. REMANDED Entitlement to an increased rating greater than 20 percent for right shoulder degenerative joint disease (DJD) with impingement syndrome is remanded. Entitlement to an increased rating greater than 10 percent for right knee chondromalacia of the patella is remanded. Entitlement to an increased rating greater than 10 percent for left knee chondromalacia of the patella is remanded. Entitlement to a TDIU prior to January 10, 2020 is remanded. Entitlement to a TDIU beginning on March 17, 2021 is remanded. FINDINGS OF FACT 1. The Veteran has instability of the right knee as a result of his service connected knee disorder. 2. The Veteran has instability of the left knee as a result of his service connected knee disorder. 3. From January 10, 2020 to March 17, 2021, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disorders. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5257. 2. The criteria for entitlement to service connection for left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5257. 3. From January 10, 2010 to March 17, 2021, the criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1989 to November 1996. Procedural History The Veteran filed a claim for a total disability rating in July 2014. In September 2014, he filed a claim for increased ratings for his right shoulder disorder and bilateral knee disorders. A September 2015 rating decision increased the Veteran's right shoulder rating to 20 percent and continued the 10 percent ratings for his bilateral knee disorders. The decision also denied his claim for TDIU. The Veteran submitted a notice of disagreement in September 2016. A statement of the case was issued in April 2018 and the Veteran submitted a substantive appeal (VA Form 9) in August 2018. In April 2020, the Board remanded the issues for further consideration. The AOJ issued a supplemental statement of the case (SSOC) in July 2020. Relevant evidence was added to the claims file after July 2020 and in January 2022, the Veteran indicated that he did not want to waive AOJ review of this evidence. Nevertheless, in light of the favorable decisions here, it is not necessary to remand these appeals to the RO for consideration of this evidence. See 38 C.F.R. § 20.1304(c). Increased rating claims Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. 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. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, 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, not added under DC 5003. With any form of arthritis, painful motion is an important factor of disability; therefore, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. 1. Entitlement to a separate 10 percent rating for instability of the right knee 2. Entitlement to a separate 10 percent rating for instability of the left knee Upon review of the record and with resolution of the doubt in favor of the Veteran, the Board finds that service connection is warranted for instability of the right and left knees. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Although the VA examinations consistently show no objective evidence of instability or subluxation, the Veteran has reported instability in his October 2014 and August 2018 lay statements. Also, in a May 2020 treatment record, he reported a fall due to his knee giving out and his August 2015 VA examination shows the occasional use of a cane and brace. Although objective medical evidence is not required to establish lateral knee instability, the Veteran's lay statements combined with his medical treatment records corroborate that there was some instability in the knees. English v. Wilkie, 30 Vet. App. 347, 349 (2018). The Veteran is already in receipt of service-connection for chondromalacia of the right and left knees based on limitation of motion and his claims for increased ratings for those disorders are remanded below for readjudication by the AOJ. However, as the Board finds that separate grants of service connection for instability of the bilateral knee are warranted, these decisions are favorable to the Veteran and remand is not necessary. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's right knee instability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for right knee instability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to a TDIU from January 10, 2020 through March 17, 2021 In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1555; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16 (a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The record shows the Veteran was employed until January 10, 2020 as a technical analyst with earnings exceeding the poverty threshold. From January 10, 2020 through March 17, 2021, the Veteran was in receipt of a combined 90 percent rating, including a 70 percent rating for PTSD. Thus, the Veteran meets the schedular requirements for consideration of a TDIU for this period. The Veteran has submitted multiple letters from his VA physicians indicating that he was unable to work due to his service-connected disorders. Therefore, the Board finds that a TDIU is warranted for this period. REASONS FOR REMAND 4. Entitlement to an increased rating greater than 20 percent for right shoulder degenerative joint disease (DJD) with impingement syndrome is remanded. 5. Entitlement to an increased rating greater than 10 percent for right knee chondromalacia of the patella is remanded. 6. Entitlement to an increased rating greater than 10 percent for left knee chondromalacia of the patella is remanded. 7. Entitlement to a TDIU prior to January 10, 2020 is remanded. 8. Entitlement to a TDIU beginning on March 17, 2021 is remanded. Remand is necessary for the Agency of Original Jurisdiction (AOJ) to readjudicate the claims. The AOJ issued a Supplemental Statement of the Case in June 2020. Subsequently, several VA examinations and relevant VA treatment records were added to the claims file, both before and after the file was transferred to the Board. The examination results and records are pertinent to the Veteran's claims have not yet been considered by the AOJ. In January 2022, the Veteran declined to waive AOJ review and specifically requested remand for AOJ review. Accordingly, remand is needed for the AOJ to adjudicate the claim in light of the new evidence and issue a Supplemental Statement of the Case if the claim remains denied. 38 C.F.R. § 19.31. The matters are REMANDED for the following action: With consideration of all the evidence of record, including that which has been received since July 2020, re-adjudicate the claims. If the benefits sought on appeal remain denied, the Veteran should be provided a Supplemental Statement of the Case. An appropriate period should be allowed for response before the case is returned to the Board. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.