Citation Nr: 22017759 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 17-43 074 DATE: March 26, 2022 ORDER An initial disability rating higher than 20 percent for left knee limitation of flexion from February 28, 2015 to October 23, 2018 is denied. A separate 10 percent rating for slight left knee lateral instability from February 28, 2015 to October 23, 2018 is granted. An initial disability rating higher than 60 percent for left total knee replacement residuals from December 1, 2019, forward, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from February 28, 2015 to October 23, 2018 is granted. FINDINGS OF FACT 1. From February 28, 2015 to October 22, 2018, the left knee limitation of flexion was manifested by flexion limited no more than to 30 degrees. 2. From February 28, 2015 to October 22, 2018, the left knee demonstrated slight lateral instability. 3. From December 1, 2019, forward, the Veteran is in receipt of the maximum schedular rating of 60 percent for left knee replacement residuals. 4. From February 28, 2015 to October 22, 2018, the service-connected left knee and back disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 20 percent for the left knee limitation of flexion have not been met or approximated from February 28, 2015 to October 23, 2018. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent disability rating for slight left knee instability have been met from February 28, 2015 to October 23, 2018. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, DC 5257. 3. The criteria for an initial rating higher than 60 percent for left total knee replacement residuals have not been met or approximated from December 1, 2019, forward. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU from February 28, 2015 to October 23, 2018, are met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from August 1969 to February 1972, and from August 1978 to March 1992. This matter is on appeal from an August 2015 rating decision. In October 2019, the Board remanded the issues on appeal for updated VA treatment records and VA examination for the left knee with a medical opinion addressing whether the Veteran had pain on passive motion or with non-weight-bearing from February 28, 2015 to October 22, 2018. In September 2021, the Board again remanded the issues on appeal for updated VA treatment records and an addendum opinion addressing whether left knee range of motion in passive and in weight-bearing was performed and, if so, to provide the results of the testing or provide another examination. Because updated VA treatment records were obtained, and the collective February 2020, August 2020, and November 2021 VA medical opinions and December 2021 VA examination report are adequate, there has been compliance with the prior remand directives. The duties to notify and assist the Veteran have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. 1. An initial disability rating higher than 20 percent for the left knee limitation of flexion from February 28, 2015 to October 23, 2018 is denied. For the entire initial rating period from February 28, 2015 to October 23, 2018, the left knee disability is rated at 20 percent under the criteria at 38 C.F.R. § 4.71a, DC 5260. DC 5260 provides for a 20 percent rating for flexion limited to 30 degrees. A 30 percent rating is provided for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. After a review of all the lay and medical evidence, the Board finds that the criteria for an initial rating higher than 20 percent for the left knee disability under DC 5260 are not met or approximated for any period. For the entire rating period from February 28, 2015 to October 23, 2018, the left knee disability was manifested by left knee flexion limited no more than to 30 degrees, including after consideration of functional loss due to repetitive use and during flare-ups, which is consistent with the schedular 20 percent rating criteria; therefore, a rating higher than 20 percent under DC 5260 is not warranted for any period. DC 5261 provides for 30 percent rating for extension limited to 20 degrees, a 40 percent rating for extension limited to 30 degrees, and a 50 percent rating for extension limited to 45 degrees. 38 C.F.R. § 4.71a. In this case, the Veteran is already in receipt of a separate 30 percent rating (DC 5261) from February 28, 2015 to October 23, 2018, based on evidence of left knee limitation of extension to 20 degrees. See August 2020 VA addendum opinion; see also August 2020 rating decision; VAOPGCPREC 9-2004. The Board will next consider whether, for the rating period from February 28, 2015 to October 23, 2018 a higher or separate rating is warranted under other potentially applicable DCs used for rating knee disabilities. DC 5256 allows for higher potential ratings (with a maximum 60 percent rating) for ankylosis. The evidence shows no left knee ankylosis; therefore, DC 5256 does not apply. Similarly, DC 5262 does not apply because the evidence does not demonstrate impairment of the tibia or fibula, specifically malunion or nonunion. Because the evidence shows no removal of the semilunar cartilage, the Board finds that DC 5259 does not apply. Also, the evidence shows no genu recurvatum, and the maximum disability rating under DC 5263 is 10 percent; therefore, DC 5263 for genu recurvatum does not apply. Although the evidence shows frequent episodes of joint pain and joint effusion with a history of meniscal tear for the left knee, which would be consistent with the 20 percent rating criteria under DC 5258, under the specific facts of this case, and not as a matter of law, the Veteran is not entitled to separate ratings under both Diagnostic Code 5258 (dislocation of semilunar cartilage) and Diagnostic Code 5260 (limitation of flexion) because the pain and limitations of motion would be overlapping symptomatology that would be double compensated. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). DCs 5258 and 5260 both rate based on limitation of motion and knee pain, as a cause of limitation of motion. In the case of DC 5258, limitation of motion is reflected by the symptoms or findings of pain, locking, and effusion into the joint. See also Firestein, Kelley's Textbook of Rheumatology 571 (9th ed. 2012) ("locking" is the sudden loss of ability to extend the knee and is usually painful and may be associated with an audible noise, such as a click or pop). In the case of DC 5260, such limitation of motion is encompassed by the limitation of flexion, including limitation of motion due to pain. Both diagnostic codes overlap in "locking" as a form of limitation of motion that is usually accompanied by pain; therefore, the diagnostic codes both rate on knee pain and limitation of motion due to pain. See DeLuca; 38 C.F.R. §§ 4.40, 4.45, 4.59. Were the Board to grant separate ratings under both DC 5258 and 5260, the Veteran would receive compensation under two different codes for the same manifestations of pain and limitation of motion, which would constitute impermissible pyramiding. 38 C.F.R. § 4.14. For these reasons, the Veteran is not entitled to separate disability ratings under both DC 5258 and 5260 for the painful limitation of motion, here, flexion, associated with the left knee disability. 2. A separate 10 percent disability rating for slight left knee lateral instability from February 28, 2015 to October 23, 2018 is granted. The Board next finds that the evidence is in equipoise on the question of whether the criteria for a separate 10 percent rating under DC 5257 for other impairment of the knee are met for the period from February 28, 2015 to October 23, 2018. See VAOPGCPREC 23-97, 9-98. DC 5257 provides for a 10 percent rating when there is evidence of slight impairment of the knee manifested by recurrent subluxation or lateral instability, a 20 percent rating for moderate impairment of the knee manifested by recurrent subluxation or lateral instability, and a 30 percent rating for severe impairment of the knee manifested by recurrent subluxation or lateral instability. 38 U.S.C. § 4.71a. Although the June 2015 VA examination showed normal joint stability during objective testing, the VA examiner noted that there was a history of slight left knee lateral instability and specified that the Veteran occasionally used a cane due to flare-ups of knee pain and instability. The June 2015 VA examiner also included instability of station when identifying additional contributing factors for the left knee disability. Given the normal joint stability testing at the VA examination, the Board finds that the left knee disability is manifested by no more than slight lateral instability; therefore, resolving reasonable doubt in favor of the Veteran, a separate rating of 10 percent under DC 5257 for slight left knee lateral instability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 3. An initial disability rating higher than 60 percent for the left total knee replacement from December 1, 2019, forward, is denied. For the portion of the rating period from December 1, 2019, the left total knee replacement is rated at 60 percent under the criteria found at 38 C.F.R. § 4.71a, DC 5055 for knee replacement (prosthesis). Under DC 5055, a 60 percent rating is provided when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 100 percent rating is assigned for one year following implantation of a prosthesis. The minimum schedular rating that can be assigned for a prosthetic knee after the one-year period following implantation of a prosthesis is 30 percent; the maximum schedular rating that can be assigned is 60 percent. The Veteran received a 100 percent rating from October 23, 2018, to December 1, 2019, for the one-year period following his left total knee replacement. From December 1, 2019, forward, he is already in receipt of the maximum 60 percent disability rating under DC 5055 for chronic residuals consisting of severe painful motion or weakness in the affected extremity during the period at issue; therefore, no higher rating under DC 5055 for the left total knee replacement is available on a schedular basis for the portion of the rating period from December 1, 2019, forward. The Board finds that neither the Veteran nor the record has raised the issue of an extraschedular rating for the initial rating appeals. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (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). 4. A TDIU from February 28, 2015 to October 23, 2018 is granted. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran's employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. For a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). For the entire TDIU rating period from February 28, 2015 to October 23, 2018, the service-connected disabilities are the left knee disability, rated at 20 percent; now, a left knee instability, rated at 10 percent; bilateral hearing loss, rated at 40 percent; a back disability, rated at 20 percent; left knee limitation of extension, rated at 30 percent; tinnitus, rated at 10 percent; and a left knee surgical scar, rated at 0 percent. The combined disability rating is 80 percent from February 28, 2015, to October 23, 2018. (He is rated at 100 percent from October 23, 2018, to December 1, 2019, and already has a TDIU effective from January 28, 2019, forward). Because one disability is rated at 40 percent or higher (i.e., bilateral hearing loss rated at 40 percent), and the combined rating is 70 percent or higher (i.e., 80 percent), the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are met for the entire TDIU rating period. In this case, the Board finds that the evidence is in equipoise on the question of whether the Veteran is unable to maintain substantially gainful employment due to the service-connected disabilities. The Veteran contends that the service-connected left knee and back disabilities render him unemployable. He has reported one year of college education, has past relevant work experience as a grocery sales associate, and has not worked full time since August 2014. During the TDIU rating period from February 28, 2015 to October 23, 2018, the collective left knee disabilities were manifested by frequent episodes of joint pain and joint effusion with a history of meniscal tear, flexion limited no more than to 30 degrees, extension limited no more than to 20 degrees, and slight lateral instability. The back disability was manifested by pain with forward flexion limited to 65 degrees, a combined range of motion of 175 degrees, and guarding resulting in abnormal gait. (Continued on the next page) Because the Veteran's past work experience as a grocery sales associate requires the ability to stand, walk, and bend for prolonged periods, and he has limited education, it is likely that the service-connected left knee and back disabilities would significantly impair the ability to retain (maintain) substantially gainful employment. The Veteran credibly reported that he last worked full time in August 2014. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a TDIU are met for the period from February 28, 2015 to October 23, 2018. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.