KNEE IMPAIRMENT OF

MICHAEL T. OSBORNE · 2025 · Case ID: 25011729

MIXED

Summary

The veteran, who served in the U.S. Army from January 1972 to January 1974, appeals the denial of entitlement to increased ratings for right knee osteoarthritis with meniscectomy residuals and status post knee replacement, as well as a TDIU claim. The veteran sought higher ratings for his right knee condition for specific periods between June 2008 and August 2013, and an extraschedular TDIU for the same periods. The Board reviewed the procedural history, noting prior remands and grants for other conditions. The primary issue concerned the adequacy of a December 2024 VA examination, which the veteran argued was insufficient for failing to test passive motion and adequately explain findings. The Board found the VA examination adequate, noting it addressed the veteran's contentions and was based on objective findings, including improvements post-surgery. The Board found the private examiner's opinion less probative due to its failure to acknowledge these improvements. The Board granted a 10 percent rating for slight right knee instability for specific periods but denied higher ratings for painful limitation of motion and residuals of the knee replacement, finding the evidence did not support them. The TDIU claim was denied, as the Board found the evidence, particularly objective findings from VA examinations, did not demonstrate the inability to secure substantially gainful employment solely due to service-connected knee disabilities for the periods in question, and the benefit of the doubt did not apply.

Rationale

VA examiner's opinion found more probative than private examiner's.; VA examiner noted improvements post-knee replacement.; Objective findings did not support severe impairment or loss of function.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

09-34 285

Full Decision Text

Citation Nr: 25011729
Decision Date: 09/16/25 Archive Date: 09/16/25

DOCKET NO. 09-34 285
DATE: September 16, 2025

ORDER

Entitlement to an initial rating greater than 10 percent for osteoarthritis of the right knee with meniscectomy residuals and status post right knee replacement from June 23, 2008, to November 30, 2009, and from April 1, 2010, to August 26, 2013, and to an initial rating greater than 30 percent since October 1, 2014, is denied.

Entitlement to a separate 10 percent rating for instability of the right knee from June 23, 2008, to November 30, 2009, and from April 1, 2010, to August 26, 2013, is granted.

Entitlement to a total disability rating based on individual unemployability (TDIU) from June 23, 2008 to November 30, 2009, and from April 1, 2010, to August 26, 2013, on an extraschedular basis is denied.

FINDINGS OF FACT

1. The record evidence shows that, from June 23, 2008, to November 29, 2009, the Veteran's right knee had arthritis and a noncompensable but painful limitation of motion and slight instability.

2. The record evidence shows that, from April 1, 2010, to August 26, 2013, the Veteran's right knee had arthritis and a noncompensable but painful limitation of motion and slight instability.

3. The record evidence shows that, following a total right knee replacement, since October 1, 2014, the Veteran's right knee has had a noncompensable but painful limitation of motion and no ankylosis, subluxation, genu recurvatum, or malunion or nonunion of the right tibia or fibula.

4. The record evidence shows that the Veteran's service-connected bilateral knee disability did not prevent him from obtaining or retaining substantially gainful activity for the periods from June 23, 2008, to November 30, 2009, and from April 1, 2010, to August 26, 2013.

CONCLUSIONS OF LAW

1. The criteria for an initial rating greater than 10 percent from June 23, 2008, to November 30, 2009, for osteoarthritis of the right knee based on arthritis and limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010.

2. The criteria for an initial rating greater than 10 percent from April 1, 2010, to August 26, 2013, for osteoarthritis of the right knee with meniscectomy residuals based on limited and painful right knee motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5010.

3. The criteria for a 10 percent rating from June 23, 2008, to November 30, 2009, and from April 1, 2010, to August 26, 2013, for instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5010.

4. The criteria for a TDIU on an extraschedular basis from June 23, 2008, to November 30, 2009 and from April 1, 2010 to August 26, 2013, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active U.S. Army service from January 1972 to January 1974.

This Legacy appeal has a
4.7, 4.40, 4.45, 4.59, 4.71a, DC 5010.

4. The criteria for a TDIU on an extraschedular basis from June 23, 2008, to November 30, 2009 and from April 1, 2010 to August 26, 2013, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active U.S. Army service from January 1972 to January 1974.

This Legacy appeal has a long and complicated procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

A Travel Board hearing was held in April 2011 before the undersigned Acting Veterans Law Judge and a copy of the hearing transcript has been added to the record.

The Board denied entitlement to increased ratings for right knee osteoarthritis with meniscectomy residuals and status post knee replacement and remanded a TDIU claim in a June 2017 Legacy decision which outlined the prior procedural history of this appeal in detail. That procedural history will not be repeated here. The Veteran, through his attorney, and VA's Office of General Counsel appealed the Board's June 2017 denial of increased ratings for right knee osteoarthritis with meniscectomy residuals and status post knee replacement by filing a Joint Motion for Partial Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court). The Court granted the Joint Motion in June 2018, vacating and remanding that part of Board's June 2017 decision which denied increased ratings for right knee osteoarthritis with meniscectomy residuals and status post knee replacement.

The Board notes that, in a separate Legacy appeal stream, the Veteran perfected an appeal for claims of service connection for a low back disability and for a right hip disability in November 2017. The Board granted service connection for low back and right hip disabilities in an October 2024 decision. As this represents a full grant of the benefits sought, these issues are no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997).

The RO subsequently granted TDIU effective August 26, 2013, in a June 2018 Legacy rating decision. In January and November 2019, the Board consolidated the Veteran's Legacy appeals and remanded all of the currently appealed claims to the RO for additional development. The Board also remanded the Veteran's increased rating and TDIU claims in October 2024 for development. Having reviewed the record evidence, the Board finds that the RO substantially complied with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. Neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 370 (2017).

Increased Ratings

1. Right knee osteoarthritis with meniscectomy residuals from June 23, 2008, to November 30, 2009, and from April 1, 2010, to August 26, 2013.

2. Right knee instability from June 23, 2008, to November 30, 2009, and from April 1, 2010, to August 26, 2013.

3. Right knee status-post knee replacement from October 1, 2014.

VA received the Veteran's claim for an increased rating on June 23, 2008. The Veteran is in receipt of a 10 percent rating for painful limitation of motion effective June 23, 2008 under DC 5010 (traumatic arthritis). The Veteran was awarded a temporary total disability rating based on postoperative convalescence effective November 30, 2009, pursuant to 38 U.S.C. § 4.30. Effective April 1, 2010, the Veteran is in receipt of a 10 percent rating for painful limitation of motion under DC 5010 and a 10 percent rating for a cartilage, semilunar, removal of, symptomatic unde DC 5259. The Veteran was awarded another temporary total rating based on postoperative convalescence effective August 26, 2013, pursuant to 38 U.S.C. § 4.30. Effective October 1, 2014, a 30 percent rating was assigned under DC 5055 (knee replacement (prosthesis)).

The Veteran contends that his right knee disability warrants higher ratings than those currently assigned. Specifically, the Veteran, through his attorney, argues that a 30 percent rating is warranted for his right knee condition from June 23, 2008 to November 30, 2009 and from April 1, 2010 to August 26, 2013.

The Board previously found VA examinations performed in August 2008, July 2010, December 2014, and May 2019 are inadequate for rating purposes. Accordingly, this evidence was not reviewed or relied upon in adjudicating the claims currently on appeal.

The Veteran was afforded an additional VA medical opinion in December 2024 addressing the period on appeal. The Veteran maintains that this examination is inadequate because the VA examiner did not test for pain on passive motion and did not explain why the test could not be performed. The Veteran further contends that the examination is inadequate because the VA examiner failed to offer any supporting data from the Veteran's medical history in concluding that the Veteran's knee pain has not significantly resulted in severe impairment or loss of function in the knee.

In advancing an argument concerning the adequacy of the December 2024 VA examination, the Veteran appears to be raising a general challenge to the professional competence of the VA examiner who conducted this examination. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). Neither the Veteran nor his representative has raised a specific challenge to the professional medical competence or qualifications of the December 2024 VA examiner. In other words, the appellant has not satisfied the requirement of raising a specific challenge to the December 2024 VA examiner's competence in the first instance. As a result, VA is not required to support its decision in this appeal by presenting information about this examiner's qualifications. Id.

The Board finds that the Veteran's argument concerning the adequacy of the December 2024 medical opinion is not persuasive because it mischaracterizes this evidence. The December 2024 VA examiner noted that passive testing could not be performed due to the Veteran's reports of pain. Additionally, the examiner cited the Veteran's improvement post-knee replacement, as well as the negative clinical findings on examination, to support her assessment that the Veteran's knee pain has not significantly resulted in severe impairment or loss of function in the knee. There has been no showing or even an allegation that the December 2024 VA examiner was not competent or did not report accurately what she found in her review of the claims file. Thus, the Board finds that the December 2024 VA examination and medical opinion are adequate for evaluation purposes because this evidence addressed fully all of the Veteran's contentions concerning his right knee disability.

Turning to the findings obtained at the December 2024 VA examination, the Board notes that the VA examiner found that, during the entire appeal period, the estimated range of motion for flexion and extension would have been 120 to 0 degrees on both passive and active motion. The examiner further estimated that pain on weight-bearing occurred at 115 to 0 degrees and pain with non-weight bearing occurred at 125 to 0 degrees. The examiner also estimated that the Veteran's range of motion would be between 0 and 100 degrees for repeated use and 0 to 95 degrees for flare ups from June 23, 2008 to November 30, 2009, between 0 to 100 for flare ups from April 1, 2010 to August 26, 2013, and between 0 to 120 for flare ups from October 1, 2014. Additionally, the examiner documented the Veteran's reports of a history of recurrent subluxation or persistent instability, attributing the instability to an incomplete and partial ligament tear that was repaired. The examiner further noted the Veteran's reports that he used a cane for instability, but she indicated that he does not require a prescription for an assistive device to ambulate. Citing medical literature, the examiner concluded that self-reported knee instability is common and influences daily activities in a large proportion of individuals with osteoarthritis of the knee. Thus, the examiner provided a new diagnosis of right knee instability directly related to the Veteran's service connected diagnosis of osteoarthritis of the right knee status post arthroscopy for meniscal repairs and status post total knee replacement.

Additionally, the Decembre 2024 VA examiner concluded that the Veteran's residual knee pain status- post knee replacement is of moderate severity with approximately 10 degree loss in function from the normal range of motion. In reaching this conclusion, the examiner acknowledged the Veteran's subjective reports of pain and instability in the knee. The examiner noted that objective evidence of pain, laxity, or swelling was not demonstrated on the current examination, however. This examiner also noted that the Veteran's range of motion had improved by 50 degrees since his December 2014 examination. Thus, the December 2024 VA examiner concluded that the Veteran's pain had not resulted in severe impairment or loss of function in the knee.

Contrary to this assessment, a private examiner concluded in December 2016 that the Veteran's 10 percent ratings for the period from June 2008 to November 2009 and April 2010 to August 2013, and his 30 percent rating from October 2014 for the Veteran's service connected right knee are insufficient and do not accurately depict the severity of his disability during these timeframes. The private examiner elaborated in December 2016 that the Veteran experienced right knee pain with stiffness, weakness, and giving way, and despite undergoing surgery, he continues to experience pain and functional limitations. Specifically, the private examiner concluded that the Veteran has difficulty with prolonged driving, sitting, standing, and walking. This examiner also concluded that the Veteran is at risk for falling due to instability of the knee.

Having reviewed the record evidence, the Board finds that the VA examiner's opinion is more probative. The VA examiner considered the evidence of record, accurately laid out the medical history of the Veteran's right knee disability and based her conclusions on an accurate presentation of the evidence. Notably, the VA examiner highlighted improvements to the Veteran's functioning that were ignored by the December 2016 private examiner. Thus, the December 2024 VA examiner's opinion is highly probative and the private examiner's opinion is not probative.

Based on the evidence described above, the Board also finds that a 10 percent rating for slight instability of the knee under DC 5257 is warranted for the periods from June 23, 2008 to November 30, 2009 and from April 1, 2010 to August 26, 2013. A higher rating is not warranted for moderate or severe instability, as there is no objective evidence of instability in examining or treating records. A higher or separate rating also is not warranted for the periods from June 23, 2008, to November 30, 2009, and from April 1, 2010, to August 26, 2013. The evidence does not demonstrate that the Veteran's right knee flexion is limited to 30 degrees or less or that his extension is limited to 15 degrees or more to warrant a higher rating under DC 5260
2008 to November 30, 2009 and from April 1, 2010 to August 26, 2013. A higher rating is not warranted for moderate or severe instability, as there is no objective evidence of instability in examining or treating records. A higher or separate rating also is not warranted for the periods from June 23, 2008, to November 30, 2009, and from April 1, 2010, to August 26, 2013. The evidence does not demonstrate that the Veteran's right knee flexion is limited to 30 degrees or less or that his extension is limited to 15 degrees or more to warrant a higher rating under DC 5260 (limitation of flexion) or DC 5261 (limitation of extension). A separate rating also is not warranted under DC 5259 (removal of semilunar cartilage, symptomatic) as there is no evidence of frequent episodes of locking and the Veteran already is compensated for pain under DC 5010. The evidence further fails to demonstrate the presence of shin splints, ankylosis, or genu recurvatum to warrant higher or separate ratings under DC 5256 (ankylosis), DC 5262 (impairment of tibia and fibula), or DC 5263 (genu recurvatum).

A rating greater than 30 percent also is not warranted for the period from October 1, 2014. The December 2024 VA examiner classified the Veteran's chronic right knee residuals as moderate and not severe. This assessment is highly probative as it was based on a finding that the Veteran's range of motion had improved by 50 degrees since 2014 with no objective evidence of pain, laxity, or swelling demonstrated on 2024 VA examination.

There also is no evidence that the Veteran experienced limitations from flare ups or repeated use over time that would warrant additional compensation. At most, the December 2024 VA examiner concluded that the Veteran's flexion and extension are limited to 0 to 95 degrees during flare ups or with repeated use over time. Moreover, there is no indication that the Veteran has experienced the equivalent of ankylosis during flare-ups or with repeated use over time, and the evidence or record does not indicate that he has limitation of motion this severe. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (explaining that ankylosis "can be met with evidence of the functional equivalent of ankylosis during a flare.").

Accordingly, the Board finds that a separate rating of 10 percent for slight right knee instability is warranted for the period from June 23, 2008, to November 30, 2009, and from April 1, 2010 to August 26, 2013. A rating greater than 10 percent for painful right knee range of motion is not warranted, however, for the periods from June 23, 2008, to November 30, 2009, and from April 1, 2010, to August 26, 2013. Additionally, a rating greater than 30 percent for chronic residuals of the right knee disability is not warranted for the period from October 1, 2014.

TDIU

The Veteran finally contends that he is unable to obtain substantially gainful employment solely as a result of his service-connected knee disabilities. The AOJ granted TDIU on an extra-schedular basis from August 26, 2013, which is the date when he had a total replacement of the right knee. Prior to August 26, 2013, the only compensable disability ratings in effect pertained to disabilities of the right and left knees. Specifically, a 30 percent rating was in effect for a left knee disability with history of arthritis from March 1, 2006. A 10 percent rating is in effect for a right knee disability with osteoarthritis from June 23, 2008, to November 30, 2009, and from April 1, 2010, to August 26, 2013. A 10 percent rating is also in effect for right knee instability from June 23, 2008, to November 30, 2009, and from April 1, 2010, to August 26, 2013.

The Veteran is in receipt of a 100 percent disability rating for his right knee from November 30, 2009 to April 1, 2010. The Board notes here that a grant of a 100 percent schedular rating does not always render the issue of a TDIU moot. The Court has held that VA's duty to maximize a claimant's benefits includes consideration of whether his or her disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). SMC is not applicable here, however, as the Veteran does not have another disability separately rated at 60 percent or more. Thus, the Board finds that the issue of TDIU is moot for the period from November 30, 2009, to April 1, 2010, when he was in receipt of a 100 percent schedular rating for his right knee.

The Board next finds that the Veteran does not satisfy the schedular criteria for a TDIU for the time periods from June 23, 2008 to November 30, 2009 and from April 1, 2010 to August 26, 2013. See 38 C.F.R. § 4.16(a). The Board recognizes that, when the schedular TDIU requirements are not met, as in this case, a TDIU may be granted on an extraschedular basis. See 38 C.F.R. § 4.16(b). The Board is not authorized to assign an extraschedular TDIU in the first instance. See Wages v. McDonald, 27 Vet. App. 233 (2015). The AOJ referred this case to the Director, Compensation Service ("Director"), for consideration of whether an extraschedular TDIU was warranted and received the Director's negative response in May 2018.

The Board is not bound by any adverse determination from the Director regarding a Veteran's extraschedular entitlement to a TDIU. The Court has held that the Director's "decision is no different than an RO's decision in terms of its effect on the Board's statutory jurisdiction and the Board's standard of review" and that the Director's "decision is in essence the de facto decision of the [AOJ] and, as such, is not evidence...It is simply a decision that is adopted by the RO and reviewed de novo by the Board." Id. In other words, the Board must determine whether the evidence supports finding that the Veteran is entitled to TDIU on an extraschedular basis for the period in question. See 38 C.F.R. § 4.16(b).

The Board is not persuaded that the evidence supports granting the Veteran's claim of entitlement to a TDIU prior to August 26, 2013, on an extraschedular basis. The record evidence shows that he has a high school education and training in auto mechanics and welding. He worked as a letter carrier for the U.S. Post Office from 1986 to 2004. He reported that he left his job due to his bilateral knee disability. The Board notes that the Social Security Administration (SSA) awarded the Veteran SSA disability benefits in 2004 based, in part, on his bilateral knee disability. SSA considers disability benefits under different criteria than VA and, notably, considers both service-connected and nonservice-connected disability in determining a claimant's entitlement to SSA benefits. VA is not bound by any determination made by SSA. The Veteran's SSA disability award also was based on uncontrolled hypertension and service connection currently is not in effect for hypertension. Thus, the Veteran's SSA disability award has minimal probative value on the issue of his entitlement to TDIU on an extraschedular basis.

The record evidence shows that a private examiner concluded in December 2016 that the Veteran has been unable to secure and follow substantially gainful employment since 2004 due to his bilateral knee disability. This examiner elaborated that the Veteran would not even be able to meet the physical requirements of even sedentary work. This examiner attributed the Veteran's limitations to pain, diminished strength, reduced mobility and decreased endurance. Medical records document the Veteran's reports of bilateral knee pain at a level 8/10, stiffness
controlled hypertension and service connection currently is not in effect for hypertension. Thus, the Veteran's SSA disability award has minimal probative value on the issue of his entitlement to TDIU on an extraschedular basis.

The record evidence shows that a private examiner concluded in December 2016 that the Veteran has been unable to secure and follow substantially gainful employment since 2004 due to his bilateral knee disability. This examiner elaborated that the Veteran would not even be able to meet the physical requirements of even sedentary work. This examiner attributed the Veteran's limitations to pain, diminished strength, reduced mobility and decreased endurance. Medical records document the Veteran's reports of bilateral knee pain at a level 8/10, stiffness, weakness, and instability with limitations in prolonged sitting, standing, and walking. These records also document the Veteran's reports of moderate difficulty bathing, dressing, and toileting, and severe limitation with exercise, recreation, traveling, and driving. The Veteran has maintained consistently that his bilateral knee pain prevents him from working.

Contrary to this evidence, the clinical findings obtained on VA examinations dated prior to 2013 were relatively mild. At most, the Veteran exhibited an antalgic gait, very mild effusion, crepitus, tenderness, slight decrease in tactile sensation, and minimal quad atrophy. Otherwise, he exhibited full strength, normal reflexes, no deformity, no subluxation, and no locking. The December 2024 VA examiner concluded that the Veteran's right knee disability was substantially less limited. Notably, the examiner assessed the Veteran as having range of motion no more limited than 0 to 95 degrees of the right knee during flare ups and with repeated use over time for the period prior to August 26, 2013. This evidence is more probative than the Veteran's subjective reports concerning the occupational impact of his right knee disability. The objective findings are a direct reflection of his functioning and the VA examiner's assessment is based on a review of these records.

Accordingly, while the evidence dated prior to August 26, 2013 indicates some occupational impairment, it does not indicate that the Veteran is unable to secure gainful employment solely as a result of his service-connected knee disabilities at any time during this time period. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a TDIU prior to August 26, 2013, on an extraschedular basis. The evidence persuasively weighs against the claim. Therefore, the benefit of the doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Thus, the Board finds that the criteria for a TDIU on an extraschedular basis from June 23, 2008 to November 30, 2009 and from April 1, 2010 to August 26, 2013 have not been met.

Michael T. Osborne

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Beech, T.

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.

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