Citation Nr: 22016239 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 12-32 630 DATE: March 21, 2022 ORDER Entitlement to a rating in excess of 20 percent for left knee posterior horn tear is denied. Entitlement to a rating in excess of 10 percent for left knee popliteal baker's cyst is denied. Entitlement to a rating in excess of 10 percent for right knee popliteal baker's cyst is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. A 20 percent disability rating is the maximum schedular rating assignable under Diagnostic Code 5258. 2. The Veteran's left knee popliteal baker's cyst does not result in flexion limited to 30 degrees or extension limited to 10 degrees. 3. The Veteran's right knee popliteal baker's cyst does not result in flexion limited to 30 degrees or extension limited to 10 degrees. 4. The Veteran's service-connected disabilities have not rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left knee posterior horn tear have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5258. 2. The criteria for a rating in excess of 10 percent for left knee popliteal baker's cyst have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5020-5260. 3. The criteria for a rating in excess of 10 percent for right knee popliteal baker's cyst have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5020-5260. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from September 1999 to August 2000. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded in May 2018 and in November 2019 for further development. The Board finds that the remand directives from the November 2019 remand have been substantially complied with - a current VA examination was conducted which included Correia criteria. Therefore, the Board will proceed with a decision. Increased Rating 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Further, 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 in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court 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). 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 (38 C.F.R. § 4.40), 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 (38 C.F.R. § 4.45). 1. Left Knee Posterior Horn, Left and Right Knee Popliteal Baker's Cyst The Veteran seeks increased ratings for his service-connected left and right knee disabilities. He is currently in receipt of a 20 percent rating for left knee posterior horn tear under Diagnostic Code 5258 and 10 percent ratings each for left and right knee popliteal baker's cyst under Diagnostic Codes 5020-5260. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the amendments did not change the criteria under Diagnostic Codes 5256, 5258, 5259, 5260, or 5261. Under Diagnostic Code 5258, cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint warrants a maximum 20 percent rating. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.20. A hyphenated diagnostic code generally reflects rating by analogy to a closely related condition that best approximates the disability picture. See 38 C.F.R. § 4.20 and 4.27. In this case, Diagnostic Code 5060 is used for rating the Veteran's left and right popliteal baker's cyst disabilities, while Diagnostic Code 5020 relates to synovitis, the underlying source of the disability. Diagnostic Code 5020 directs that synovitis be evaluated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5020. 38 C.F.R. § 4.59 (the intent of the schedule is to recognize painful motion with joint pathology as productive of disability and to recognize actually painful unstable or malaligned joints due to healed injury as entitled to at least the minimum compensable rating for the joint); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Under Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. On VA examination in December 2009, left knee flexion was to 90 degrees. Extension was normal. Right knee flexion was to 130 degrees. Extension of the right knee was normal. There was objective evidence of pain with active motion and upon repetitive motion of both knees. There were no additional limitations after three repetitions. There was no instability of either knee. On VA examination in September 2011, the Veteran reported experiencing severe left knee pain and mild right knee pain. Flexion of the left knee was to 135 degrees with normal extension. Right knee flexion was to 140 degrees with normal extension. There was objective evidence of pain with active motion and upon repetitive motion of both knees. There were no additional limitations after three repetitions. There was no instability or ankylosis of either knee. On VA examination in May 2012, the Veteran reported this his bilateral knee pain was deep, dull and occasionally sharp. Both left and right knee flexion were to 125 degrees with painful motion at 90 degrees. Extension of both knees was normal. There was no additional loss of range of motion or functional loss in either knee upon repetitive use testing. Joint stability tests for both knees were normal. There was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran did not have or ever have shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment of either knee. The left knee was positive for a meniscus tear. On VA examination in February 2015, flexion of the left knee was to 70 degrees and extension was to 0 degrees. Pain was noted on extension. Following repetitive use, flexion was to 60 degrees and extension was to 0 degrees. Flexion of the right knee was to 100 degrees and extension was to 0 degrees. There was pain on range of motion. Following repetitive use, flexion was to 100 degrees and extension was to 0 degrees. There was no evidence of pain on weightbearing for either knee. There was no ankylosis of either knee. Joint stability tests of both knees were normal. It was noted that the Veteran had undergone a partial medial meniscectomy of the left knee in May 2013. There were no other pertinent findings. On VA examination in November 2016, flexion of the left knee was to 60 degrees and extension was to 0 degrees. Flexion of the right knee was to 70 degrees and extension was to 0 degrees. Pain was noted on examination but did not cause functional loss. There was no additional functional loss or loss of range of motion following repetitive use testing. There was no ankylosis of either knee. Joint stability tests were normal. The Veteran did not have a history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. On VA examination in August 2019, flexion of the left knee was to 90 degrees and extension was to 5 degrees. Flexion of the right knee was to 100 degrees and extension was to 0 degrees. Pain was noted on examination but did not cause functional loss. There was no additional functional loss or loss of range of motion following repetitive use testing. There was no ankylosis of either knee. Joint stability tests were normal. The Veteran did not have a history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. On VA examination in September 2021, flexion of the left knee was to 55 degrees and extension was to 0 degrees. Flexion of the right knee was to 70 degrees and extension was to 0 degrees. Pain was noted on examination but did not cause functional loss. For both knees, passive range of motion was the same as active range of motion. There was no additional functional loss or loss of range of motion following repetitive use testing. There was no pain on weight bearing of the right knee. There was pain with weight bearing on the left knee. Pain started around 20 degrees of flexion and 20 degrees of extension. There was no ankylosis of either knee. Joint stability tests were normal. The Veteran did not have a history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Board has reviewed the Veteran's lay statements and all relevant medical evidence, with particular attention to the VA examination reports from December 2009, September 2011, May 2012, February 2015, November 2016, August 2019, and September 2021. The Veteran in receipt of the maximum evaluation assignable under Diagnostic Code 5258. As 20 percent is the maximum rating assignable under that Diagnostic Code, a rating in excess of the currently assigned 20 percent cannot be provided. Therefore, no higher rating is available with regard to the Veteran's left knee posterior horn tear. Also, the Board finds that a rating in excess of 10 percent each for the left and right knee popliteal baker's cyst is not warranted for limited flexion. For the Veteran to be entitled to the next available rating of 20 percent for limited flexion under Diagnostic Code 5260, the evidence must show flexion limited to 30 degrees or less. In this case, however, the evidence shows flexion in the left knee is limited to no less than 55 degrees and in the right knee is limited to no less than 70 degrees. In addition, a separate rating under Diagnostic Code 5261, for limited extension has not been shown by the evidence. The Veteran's left knee at worst, was limited to 5 degrees in August 2019, and the right knee has consistently been normal at 0 degrees. Thus, a separate rating for either knee based on limited of extension is not warranted. The provisions of 38 C.F.R. § 4.59 recognize actually painful, unstable, or malaligned joints as entitled to at least the minimum compensable rating for a joint. That has already been assigned, however, and nothing in the record indicates the Veteran otherwise has or would have limitation of flexion or extension to the extent necessary for a rating in excess of the ratings assigned, to include during flare-ups of pain, in active or passive motion, weight or non-weight bearing. As for other potentially applicable Diagnostic Codes for the Veteran's left and right knee, there have been no clinical findings on the VA examinations that reflect that the Veteran suffers from ankylosis, recurrent subluxation or lateral instability of either knee, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. Accordingly, Diagnostic Codes 5256, 5257, 5259, 5262, and 5263 are not for application. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran is service connected for left knee posterior horn tear, rated as 20 percent disabling; left knee popliteal baker's cyst, rated as 10 percent disabling; right knee popliteal baker's cyst, rated as 10 percent disabling; and gastroesophageal reflux disease rated as 10 percent disabling. His combined evaluation is 50 percent. He therefore does not meet the scheduler requirements for TDIU under 38 C.F.R. § 4.16(a). However, although the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16(a), the Board must consider whether or not the Veteran is rendered unemployable due to his service-connected disabilities so as to warrant referral for extra-schedular consideration for TDIU under 38 C.F.R. § 4.16(b). While it is clear that the Veteran has some occupational and functional impairment as a result of his knee disabilities as demonstrated on the VA examinations of record, the evidence does not support that the Veteran's disabilities preclude him from securing and following a substantial gainful employment. In this respect, in February 2020, the RO requested that the Veteran complete a VA Form 21-8940, which would provide information on the Veteran's work history and education. The Veteran has not completed this form. Since VA does not have a completed VA Form 21-8940, the Veteran's work history cannot be verified. Moreover, it cannot determine if the Veteran is currently holding a substantially gainful occupation. Consequently, the Board finds that the evidence of record does not demonstrate that the Veteran is unable to secure and follow a substantially gainful employment as a result of his service-connected disabilities at this time. There is no reasonable possibility that a referral to the Director would result in a grant of this claim. Therefore, a referral for extraschedular consideration of entitlement to a TDIU under 38 C.F.R. § 4.16(b) is not appropriate in this case. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.