Citation Nr: 22016289 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 10-36 473A DATE: March 21, 2022 ORDER Prior to August 21, 2020, a rating greater than 20 percent for right knee arthritis, limitation of extension is denied. Prior to August 21, 2020, a rating greater than 20 percent for left knee arthritis, limitation of extension is denied. After August 21, 2020, a compensable rating for right knee arthritis, limitation of extension is denied. After August 21, 2020, a compensable rating for left knee arthritis, limitation of extension is denied. Prior to July 28, 2021, a rating greater than 10 percent for degenerative joint disease (DJD), right knee, limitation of flexion and painful motion ("right knee DJD") is denied. Prior to July 28, 2021, a rating greater than 10 percent for DJD, left knee, limitation of flexion and painful motion ("left knee DJD") is denied. After July 28, 2021, a rating greater than 20 percent for right knee DJD is denied. After July 28, 2021, a rating greater than 20 percent for left knee DJD is denied. An effective date of August 19, 2015, but no earlier, for the award of a total disability rating based on individual employability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Prior to August 21, 2020, bilateral knee limitation of extension manifested by subjective complaints of pain; objective testing did not show bilateral knee limitation of extension limited to 20 degrees. 2. After August 21, 2020, bilateral knee limitation of extension manifested by subjective complaints of pain; objective testing did not show bilateral knee limitation of extension limited to 10 degrees. 3. Prior to July 28, 2021, bilateral knee DJD manifested by subjective complaints of chronic pain and flares; objective findings did not demonstrate flexion limited to 30 degrees. 4. After July 28, 2021, bilateral knee DJD manifested by subjective complaints of chronic pain and flares; objective findings did not demonstrate flexion limited to 15 degrees. 5. The Veteran maintained substantially gainful employment until August 19, 2015. CONCLUSIONS OF LAW 1. Prior to August 21, 2020, the criteria for a rating greater than 20 percent for right knee arthritis, limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5010-5261. 2. Prior to August 21, 2020, the criteria for a rating greater than 20 percent for left knee arthritis, limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5010-5261. 3. After August 21, 2020, the criteria for a compensable rating for right knee arthritis, limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5010-5261. 4. After August 21, 2020, the criteria for a compensable rating for left knee arthritis, limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5010-5261. 5. Prior to July 28, 2021, the criteria for a rating greater than 10 percent for right knee, limitation of flexion and painful motion, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5010-5260. 6. Prior to July 28, 2021, the criteria for a rating greater than 10 percent for left knee, limitation of flexion and painful motion, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5010-5260. 7. After July 28, 2021, the criteria for a rating greater than 20 percent for right knee, limitation of flexion and painful motion, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5010-5260. 8. After July 28, 2021, the criteria for a rating greater than 20 percent for left knee, limitation of flexion and painful motion, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5010-5260. 9. The criteria for an effective date of August 19, 2015, but no earlier, for the award of a TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1978 to November 1998, including sea service. For his meritorious service, the Veteran was awarded (among other decorations) the Navy and Marine Corps Commendation Medal and the Southwest Asia Service Medal with two stars. This case has a long procedural history before both the Board of Veterans' Appeals (Board) and the Department of Veterans Affairs (VA) Regional Office (RO). An extended recitation of that history has been provided in previous remands. Of most importance, these appeals were most recently remanded by the Board in July 2021 for a new VA examination, which was obtained later that same month. For the reasons described in the subsequent discussion section, the Board finds substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings The Veteran is currently pursuing higher ratings for several of his service-connected disabilities. Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claims 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. Where the appeals require similar analyses, they will be addressed simultaneously below. Limitation of Extension (Prior to August 21, 2020) The Veteran is currently in receipt of separate 20 percent ratings for his right and left knee limitation of extension prior to August 21, 2020. He has been rated under DC 5010-5261. Under both the former and amended regulations, DC 5010 holds that arthritis shall be rated as limitation of motion. Here, the Veteran's bilateral disabilities are rated under DC 5261 for limitation of extension. Typically, the Board will consider all DCs pertaining to the knee in assessing whether a higher rating is warranted. In this case, the Board will strictly limit its analysis to DC 5261 only, and address the remaining DCs in the section below. This does not result in any detrimental impact to the Veteran, as consideration of all relevant DCs will be undertaken with respect to the entire period on appeal. Thus, a 30 percent rating is warranted for the Veteran's bilateral limitation of extension prior to August 21, 2020, with evidence of the following: Extension limited to 20 degrees. The rating criteria did not change with the February 2021 amendments. Additionally, the Schedule provides that the normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Here, the evidence does not support the assignment of higher ratings for the Veteran's right and left knee limitation of extension prior to August 21, 2020. He underwent two VA examinations during the period on appeal. In October 2008, the examiner denied that the Veteran showed normal extension bilaterally, but declined to offer an assessment in terms of degrees of limitation. The examiner denied objective evidence of pain following repetitive motion and additional limitations after three repetitions of range of motion. Flares were denied. Briefly, the Board acknowledges that this evaluation does not fully comply with the current requirements of joint examinations. See, e.g., Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 39-42 (2011); Sharp v. Shulkin, 29 Vet. App. 26 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). However, this examination was requested prior to the precedent established by many of the precedential cases, and the Board does not find that a retrospective opinion regarding these factors can reliably be estimated by an examiner more than a decade after the fact. Thus, to remand for such an opinion would only serve to unduly delay in the adjudication of this appeal in an effort to obtain what would, at its core, be an unreliable opinion. Rather, the Board simply accepts this examination as competent to the extent that it offers an evaluation of the Veteran's limitation of extension, as reported above. The Veteran also underwent VA examination in July 2016. During initial range of motion testing, the Veteran showed right knee extension from 70 to zero degrees with objective evidence of pain and on weight-bearing. The left knee showed initial extension from 60 to zero degrees; pain on motion was denied, but observed with weight-bearing. The Veteran was able to perform repetitive-use testing without additional loss of extension bilaterally. Functional loss caused by pain, weakness, fatigue, lack of endurance, or incoordination was explicitly denied bilaterally. However, pain was said to contribute to functional loss with repeated use over a period of time and during flares. The examiner declined to estimate additional loss of extension in terms of degrees, noting that the examiner was not being examined following repeated use over a period of time or during a flare. Here, the Board acknowledges that the July 2016 examiner does not indicate whether their inability to identify additional loss in terms of degrees reflects the limitations of the medical community at large. Sharp, 29 Vet. App. at 33. However, the examiner does clearly identify her rationale for declining to provide such information. As with the prior examination, the Board also finds that a retrospective opinion as it relates to limitation of motion at the time of an examination is not particularly reliable in this case. Moreover, the remaining evidence, including medical records and lay testimony, supports the disability pictures as offered above. Collectively, this evidence speaks to the Veteran's history of bilateral knee pain productive of limited extension, particularly with prolonged use or during flares. Importantly, definitive range of motion testing results are not available which offer a more severe disability picture than that noted by the examiners above. Rather, at their most severe, the Veteran's right knee disability was productive of extension limited from 70 to zero degrees, with the left knee showing extension limited from 60 to zero degrees. Related functional impairment was unaffected by such factors as weakness, fatigue, lack of endurance, or incoordination; even with repeated and prolonged use or the presence of flares, there is neither objective nor subjective evidence to indicate that the Veteran showed extension limited to 20 degrees. See DeLuca v. Brown, 8 Vet. App. at 206-07. Instead, he continued to show far greater extension bilaterally throughout the period on appeal. Thus, the requisite disability picture is not shown under DC 5261 as to warrant increased ratings, and the appeals seeking evaluations greater than 20 percent for right and left knee limitation of extension prior to August 21, 2020 are hereby denied. Limitation of Extension (After August 21, 2020) For the period after August 21, 2020, the Veteran is currently in receipt of separate, noncompensable ratings for his right and left knee limitation of extension under DC 5010-5261. Under both the old and amended regulations, a 10 percent rating is warranted under DC 5261 with evidence of the following: Extension limited to 10 degrees. The evidence does not support the assignment of compensable ratings for the Veteran's right and left knee limitation of extension after August 21, 2020. He underwent two VA examinations during the period on appeal. In August 2020, initial range of motion testing showed right and left knee extension from 70 to zero degrees, with evidence of pain on weight-bearing. The decreased range of motion was said to impact prolonged standing, walking, kneeling, and climbing up and down stairs for the right knee. The Veteran was able to perform repetitive-use testing without additional loss of motion; similarly, the examiner estimated no additional loss of motion with repeated use over time or during flares. However, pain was said to contribute to functional loss bilaterally. During July 2021 VA examination, the Veteran showed extension from zero to 60 degrees bilaterally during both active and passive motion. Pain was reported in active and passive motion, with weight-bearing, and resulted in functional loss. The Veteran could perform repetitive-use testing, but extension was shown from zero to 50 degrees bilaterally. Pain and lack of endurance were said to result in functional impairment with repeated use over a period of time and during flares, resulting in bilateral extension from zero to 40 degrees and zero to 30 degrees, respectively. The remaining evidence, including VA and private medical records, supports the disability pictures shown above. Collectively, this evidence speaks to the Veteran's history of bilateral knee pain productive of limited extension, particularly with prolonged use or during flares. However, definitive range of motion testing results are not found which demonstrate more severe disability pictures than those reported during the Veteran's examinations. Accordingly, the Veteran did not demonstrate such limitation of extension after August 21, 2020 as to warrant compensable ratings bilaterally. At its most severe, the bilateral disabilities resulted in limited of extension to 30 degrees, which is far greater than that enunciated in the criteria for a higher rating. Even with the presence of pain (including on weight-bearing) and intermittent lack of endurance, the evidence does not indicate that the Veteran showed such limited extension as to warrant higher ratings on this basis. Critically, the VA examinations which support the Board's findings are found to be adequate, with full consideration as to all requisite factors. See, e.g., Correia, 28 Vet. App. at 158; Mitchell, 25 Vet. App. at 39-42; Sharp, 29 Vet. App. at 26; DeLuca, 8 Vet. App. at 206-07. As the Veteran does not merit compensable ratings under DC 5261 during the period on appeal, the Board has also considered the application of DC 5010. The old regulations mandate that the relevant disability be rated as degenerative arthritis per DC 5003, which establishes that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion 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, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, degenerative arthritis will be rated as the following: a 10 percent rating is warranted for x-ray evidence of involvement of two or more major joints; a 20 percent rating is warranted for x-ray evidence of involvement of two or more major joints, with occasional incapacitating exacerbations. Similarly, the amended regulations mandate that posttraumatic arthritis be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with § 4.25. Here, the medical evidence does not establish that a compensable rating is warranted under either version of DC 5010. Rather, the claims file contains no x-ray results which show involvement of two or more major joints, nor does the Veteran show compensable degrees of limitation of motion, dislocation, or other specified instability under the affected joint. Accordingly, the appeals cannot succeed on this basis. Rather, the appeals seeking compensable evaluations for right and left knee limitation of extension after August 21, 2020 are hereby denied. DJD, Limitation of Flexion and Painful Motion (Prior to July 28, 2021) Historically, an April 2004 rating decision awarded a 10 percent initial rating for right knee DJD and continued the 10 percent evaluation assigned for left knee DJD. It is this rating decision which is currently on appeal. Throughout the pendency of this appeal, separate awards were granted for right and left knee limitation of extension. The matter of whether higher initial ratings were warranted for these disorders was adjudicated above, such that DC 5261 will not be considered as it relates to the instant discussion. Additionally, the Veteran's current 10 percent ratings for bilateral DJD have been assigned under multiple DCs during the period on appeal, to include DCs 5262 and 5260. In considering the Veteran's symptomatology during this time, the Board concludes that DC 5260 is the most appropriate for rating his disabilities during the entire period on appeal. A corresponding analysis will be offered herein. Thus, prior to July 28, 2021, a 20 percent rating is warranted under DC 5260 with evidence of the following: Flexion limited to 30 degrees. These criteria remain intact under both the old and amended regulations; normal range of motion remains as set forth in the section above. Other DCs pertaining to the knee include DC 5256 (ankylosis), DC 5257 (recurrent subluxation or lateral instability), DC 5258 (dislocation of semilunar cartilage), DC 5259 (removal of the semilunar cartilage), 5262 (tibial and fibular impairment) and DC 5263 (genu recurvatum). These disorders are not shown in the record for the period on appeal, whether under the old or new regulations, such that application of these DCs is not warranted bilaterally. See, e.g., VA examinations dated October 2008, July 2016, and August 2020. With respect to DCs 5258 and 5259, the Board acknowledges that the record shows a history of bilateral knee histories for this Veteranspecifically, left status-post arthroscopy with removal of loose bodies in 1998; right knee arthroscopy with partial resection of the internal meniscus in 2002; and left knee arthroscopy with partial meniscectomy in 2002. However, the Veteran's VA examiners have denied that these histories are indicative of dislocation or removal of the semilunar cartilage. Thus, the requisite disability pictures are not shown as to warrant consideration under DCs 5258 or 5259 in this instance. As to the evidence, the Veteran underwent multiple VA examinations during the period on appeal. In October 2008, the Veteran showed bilateral flexion to 45 degrees. There was objective evidence of pain, but no additional limitations after repetitive use. Passive range of motion was within normal limits, showing flexion to greater than 90 degrees bilaterally. The Board's assessment as to the adequacy of this examination was previously addressed in the section above. Next, the Veteran underwent examination in July 2016. At that time, he demonstrated right knee flexion to 70 degrees and left knee flexion to 60 degrees. Pain was noted with movement and on weight-bearing bilaterally. The Veteran was able to perform repetitive-use testing without additional loss of flexion. Pain was said to significantly limit functional ability with repeated use over a period of time and during a flare-up; however, the examiner was unable to estimate the additional loss of motion in degrees. Again, the Board has previously addressed the seeming deficiencies of this examination in its previous discussion. The Veteran also underwent VA examination in August 2020. At that time, he reported chronic, bilateral pain and stiffness. Range of motion testing showed flexion to 70 degrees bilaterally. There was evidence of pain with movement and on weight-bearing. The Veteran was able to perform repetitive-use testing without additional loss of motion. Pain was said to limit functional ability with repeated use over a period of time and with flares, but did not result in additional loss of range of motion. The remaining evidence, including medical records and lay testimony, supports the disability pictures as offered above. Collectively, this evidence speaks to the Veteran's history of bilateral knee pain productive of limited flexion and requiring multiple treatment methods, including surgeries and injections. Notably, there are no definitive test results which show more severe disability pictures than those noted during the above VA examinations. Thus, the appeals seeking initial ratings greater than 10 percent for bilateral knee DJD prior to July 28, 2021 are hereby denied, as the Veteran did not show such limitation of flexion as to warrant higher ratings on this basis. Even with the presence of pain, the Veteran demonstrated flexion far greater than that enunciated in the criteria for a higher rating under DC 5260, and reports of additional symptoms such as fatigability, weakness, lack of endurance, or incoordination are absent from the record. Accordingly, there is no basis upon which to grant higher ratings in this case, and the appeals are hereby denied. DJD, Limitation of Flexion and Painful Motion (After July 28, 2021) Finally, the Veteran is currently in receipt of separate 20 percent ratings for his bilateral DJD after July 28, 2021 under DC 5010-5260. Under both the old and amended regulations, a 30 percent rating is warranted with evidence of the following: Flexion limited to 15 degrees. Again, the evidence indicates that the remaining DCs (including 5256, 5257, 5258, 5259, 5262, and 5263) are not applicable to the period on appeal, whether under the old or amended regulations. See July 2021 VA examination. The Board's previous analysis as to the inapplicability of certain regulations in light of the Veteran's surgical history remains intact. Here, the Veteran underwent VA examination in July 2021. At that time, initial range of motion testing showed bilateral flexion to 60 degrees, with evidence of pain in passive motion, active motion, and on weight-bearing. The Veteran could perform repetitive-use testing, with bilateral flexion limited to 50 degrees. Pain and lack of endurance were said to contribute to functional loss. The same symptoms contributed to functional loss with repeated use over a period of time and during flares, with resulting bilateral flexion to 40 degrees and 30 degrees, respectively. Due to his pain, the Veteran required the regular use of a brace and occasional use of crutches to assist with ambulation. The remaining evidence, including VA and private treatment records, correspond to the above findings. Collectively, this evidence speaks to the Veteran's history of chronic bilateral knee pain with limited motion; however, objective test results showing a more severe disability picture are not found. Thus, even at their most severe, the Veteran's bilateral knee disabilities did not show such limitation of flexion as to warrant higher ratings. Rather, functional loss following flares was commensurate with bilateral flexion limited to 30 degrees, notably greater than that enunciated in the criteria for higher ratings. There are no additional objective test results to contradict these findings, no has the Veteran described such a disability picture as to equate flexion limited to 15 degrees or shown such additional symptomatology of such. Instead, his complete disability pictures are contemplated in the 20 percent ratings as assigned, and the appeals seeking higher evaluations after July 28, 2021 are hereby denied. With respect to each of the above appeals, the Board has considered the Veteran's good faith belief that higher ratings are warranted in this case, and his testimony offered in support thereof. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020). However, he is not shown to possess the requisite medical training and expertise to offer a competent opinion as to the specific level of disability according to the applicable DCs. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran's disabilities, which supports the denials set forth herein. In this respect, the Board offers that the VA examinations discussed herein are adequate, outside of those discussions set forth above. Earlier Effective Date The Veteran is currently seeking an earlier effective date than September 30, 2015 for the award of a TDIU. In claims for increased disability compensation, including a claim for a TDIU, the effective date will typically be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Historically, the Board asserted jurisdiction over the TDIU appeal in its July 2021 decision under the precedent of Rice v. Shinseki, 22 Vet. App. 447 (2009). At that time, the Board noted that the issue was part and parcel of increased rating appeals stemming from a November 2003 claim. The May 2020 rating decision awarded an effective date of September 30, 2015 based upon a finding that "Social Security Administration disability records confirm [that the Veteran has] not engaged in substantial gainful employment" since that time. However, the Veteran's February 2016 VA Form 21-8940 reports employment only through August 2015; a June 2016 VA Form 21-4192 shows employment through August 19, 2015. Accordingly, the evidence establishes that the Veteran maintained substantially gainful employment (as opposed to marginal employment) through August 19, 2015. There is no evidence that he was unemployed prior to this date, or that his employment was marginal. Indeed, the evidence furnished directly by the Veteran reflects that his earnings were well above the poverty level. Accordingly, August 19, 2015, is the earliest date on which entitlement to a TDIU is established, and the appeal is granted to this extent. (Continued on next page) Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.