Citation Nr: 1316958 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 02-01 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an evaluation in excess of 30 percent for a left knee disability status post total knee replacement prior to January 6, 2004. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to December 1956. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2003 and October 2004, the Board remanded the issue on appeal for further development. In an August 2009 decision, the Board denied entitlement to an evaluation in excess of 30 percent for the left knee disability for the period prior to February 11, 2004, and denied entitlement to an evaluation in excess of 60 percent for the period subsequent to April 1, 2005. The period between February 2004 and April 2005 was not at issue, as a temporary total rating of 100 percent was in effect. The Veteran appealed the August 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2010 Order, the Court granted a Joint Motion for Partial Remand. This order vacated that part of the August 2009 decision that denied entitlement to an evaluation in excess of 30 percent and remanded the issue to the Board for further action consistent with the Joint Motion. In a July 2011 decision, the Board awarded a 60 percent rating for the left knee disability from January 6, 2004, and denied an evaluation in excess of 30 percent prior to that date. The Veteran appealed the portion of the decision that denied an evaluation in excess of 30 percent for left knee disability. In a September 2012 Memorandum Decision, the Court vacated that part of the July 2011 decision and remanded the issue to the Board for further action. FINDING OF FACT Prior to January 6, 2004, the service-connected left knee disability status post total left knee replacement is not shown to be productive of left knee disability with extension limited to 30 degrees, nonunion of the tibia and fibula with loose motion requiring brace usage or ankylosis of the knee. Chronic residuals consisting of severe painful motion or weakness of the left knee are not demonstrated during this time period. CONCLUSION OF LAW For the period prior to January 6, 2004, the criteria for the assignment of an evaluation in excess of 30 percent for the service-connected left knee disability status post total left knee replacement have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 4.1, 4.7, 4.40, 4.45 4.71a, Diagnostic Code 5055 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with VCAA notification letters that contained all of the notice required by Pelegrini and Dingess, with the most recent letter having been sent in February 2007. These letters were all provided to the Veteran after the initial adjudication of his claims. However, his claims were readjudicated after he received his notice and had an opportunity to respond. Therefore, the timing problem did not result in any harm to the Veterans' claim. Neither the Veteran nor his representative contends that the notification was inadequate. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has been met. Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. In this regard, the Veteran was afforded a VA examination of his left knee during the period in question. All identified records that are available have been obtained. The Veteran and his representative have not argued that any failure in the duty to assist has harmed the Veteran's appeal. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that the duty to assist provisions of the VCAA has been met. Analysis The Veteran contends that his left knee disability was productive of a greater degree of disability prior to January 6, 2004 than was reflected by the 30 percent evaluation in effect during this period. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the Veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether or not a staged rating is appropriate for the period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In this case, the Veteran underwent a left total knee replacement in January 1999. A temporary total evaluation was assigned for a period of convalescence following the surgery. 38 C.F.R. § 4.30 (2012). Effective March 1, 2000, a 30 percent evaluation was assigned under Diagnostic Code 5055, the criteria for evaluating knee replacement. 38 C.F.R. § 4.71a. Under Diagnostic Code 5055, a 30 percent evaluation is the minimum rating assignable following implantation of the prosthesis. Intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy to Code 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula). A 60 percent evaluation is assigned for chronic residuals consisting of severe painful motion or weakness in the knee following implantation of the prosthesis. A total evaluation is assigned for one year following implantation of the prosthesis. There are other factors which must be considered in addition to those contained in the applicable rating code. The Board recognizes that the disability of the musculoskeletal system is primarily the inability due to damage or an infection in parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Factors to be considered include pain on movement, weakened movement, excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45. Functional impairment due to pain must be considered. 38 C.F.R. § 4.59. In a February 2000 statement, the Veteran said that he still suffered from right hip and left knee pain. He described the knee pain as like a cut with a burning sensation. The Veteran reported that he walked down stairs backwards and occasionally used a cane for long periods of walking. In an April 2000 VA joints examination; the examiner recorded the history of the Veteran's left knee disability. The Veteran complained of a burning pain overlying the lateral portion of the knee with sharp pain in the calf. He reported that his left knee was extremely stiff in the morning. Daypro and Tylenol helped a little. The Veteran did not have a knee brace and did not require application of ice or heat to help manage his knee disability. He did use a cane when he expected to have prolonged periods of ambulation. He reported that in prolonged periods of ambulation, his left knee subluxated approximately 40 percent of the time. He could walk about 300 yards with pain as a limiting factor. He was able to stand only about 15 minutes at a time and was unable to kneel. The Veteran also reported that descending stairs required a backward approach due to his pain with weight bearing on the left knee. He had no reported difficulty with ascending stairs; however, he needed a railing for support in both ascent and descent. His maximal stair climbing was limited to two flights. On objective examination, it was noted that the Veteran was able to ambulate the length of the hallway (200 feet) to and from the examination room without distress, significant alteration in gait or use of assistive devices. The examiner noted that he slightly favored his lower left extremity. There was significant crepitus with flexion and extension of the left knee and there was a slight calor with palpation. There was no erythema or edema and the contours of the left knee joint were approximately normal. The patella was more mobile on the left than on the right. He had well healed surgical scars that were without fixation to the underlying tissue or loss of significant tissue and were not tender to palpation. There was a well-healed incision, approximately 27 centimeters long. Lateral to this, in an area he complains of burning pain, he had another well-healed incision, approximately 7.5 cm long. Flexion of the left knee was limited to 110 degrees. There was no anterior, posterior, lateral or medial instability; however, the maneuvers appeared to result in pain for the Veteran and produced significant crepitus/clicking sensations that were both palpable and audible. He had symmetrical strength of the hip flexors and extensors, quadriceps, and hamstrings, ankle flexion and dorsiflexion. X-rays showed no evidence of fracture or dislocation. The tibial and femoral components of the total left knee prosthesis appeared to be intact. There were no radiographic changes to suggest fluid within the left knee joint. In a June 2000 statement, the Veteran reported that he was in constant pain, was unable to walk down steps, and needed to use railings to climb steps. He reported that he elected to use a cane selectively. He also asserted that he had significant pain and limitation when doing the motions and actions required in the last examination. He reported significant pain through his entire left lower extremity. Private medical records dated January 2002 show that the Veteran was seen for a six to eight month history of persistent low back, buttock and thigh pain. The history of the left knee replacement was noted. On examination, there was no pain with left knee motion. The Veteran underwent an additional VA examination of his joints in January 2002. The focus of this examination was on joints other than the left knee. However, when asked about his pain distribution, he said it started in his lower back, went to his buttocks, groin, and both thighs to the knees, left greater than right. He said that his feet were his "biggest problem" and he was most concerned about the pain in his left hip, right knee, and lower back. It was later noted that the strength of both the left quadriceps and hamstring was 4+/5 and 5/5 on the right side. A January 2002 private treatment record notes the Veteran's history of persistent low back, buttock, and thigh pain. He also complained that both lower extremities felt weak and unreliable and he reported that he had never gotten his left quad strength back. It was also noted that there was no pain with left knee or right hip motion, but that he had pain with left hip and right knee at the extreme of motion. A February 2002 VA consultation report notes that the Veteran's left knee was consistent with total knee arthroplasty. There was no crepitus, grinding, laxity, or effusion. A September 2002 VA treatment record shows that the Veteran was seen for a psychiatric assessment of his chronic pain. He reported that he was relatively pain free when at rest, but that the pain could be severe if he moved. He was uncertain what he could do for pain at that point. He said that he was unable to walk up stairs or grades and so avoided them. This report does not contain any specific reference to the left knee but instead addresses the Veteran's overall problem with pain due to multiple joint problems. In an October 2002 VA treatment record, the Veteran complained that he had chronic pain and did not feel like any surgeries alleviated his pain. He also complained of difficulty navigating stairs due to severe knee pain, especially on the left side where he had the knee replacement. Objectively range of motion in the left knee was from -5 to 100 degrees. He had no edema, erythema or warmth of the joint. He had normal muscle bulk and tone and full strength bilaterally. Sensory examination was intact. His gait was slowed but steady and he did not use any assistive devices. Other October 2002 VA treatment records note that the Veteran was undergoing physical therapy for his total knee replacement to include general conditioning. January 2003 VA psychiatric treatment records note that the Veteran continued to complain of bilateral knee pain. He had been too physically active recently at the swimming pool. He was further noted to be using an exercise bike. On objective examination of the left knee, there was no effusion and no anterior/posterior instability. He had full range of motion of the left knee and strength was 5/5 in knee extension and flexion. In a January 6, 2004 letter, the Veteran's private doctor noted the Veteran's medical history, including the 1999 left knee replacement. An examination showed dislodging of the patella component. It appeared to be floating in the knee and was quite painful. He had good stability, anterior and posterior drawer, and varus/valgus stress. He was neurologically intact distally with good pulses. An X-ray of the left knee showed left total knee arthroplasty with dislodged patella component. The Veteran was informed that it would be necessary to repair the patella component with revision surgery. In July 2011, the Board awarded a 60 percent evaluation the left knee disability effective January 6, 2004. For the period prior to January 6, 2004, the Board finds that the evidence preponderates against an evaluation in excess of 30 percent for the Veteran's left knee disability. Under Diagnostic Code 5055, intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5261, or 5262. Here, the residuals of the total left knee replacement do not include ankylosis or limitation of extension. Hence, evaluation by analogy to Diagnostic Codes 5256 and 5261 is not appropriate. Under Diagnostic Code 5262, for impairment of the tibia and fibula, a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Nonunion of the tibia and fibula with loose motion has not been demonstrated during the relevant time period. Therefore, a rating in excess of 30 percent by analogy to Diagnostic Code 5262 is also not warranted. As noted above, under Diagnostic Code 5055, a 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a. The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be just. See 38 C.F.R. § 4.6 (2012). Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012). Notwithstanding the foregoing, in its Memorandum Decision, the Court criticized the Board's analysis for considering the objective observations by the October 2002 VA examiner that the Veteran did not exhibit significant alternation in his gait. The Court pointed out that consideration of factors wholly outside the rating criteria provided by the regulation is error as a matter of law. See Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In this case, the evidence preponderates against finding that the Veteran had severe painful motion or weakness in his left lower extremity. Regarding painful motion, the Veteran reported burning pain in February and April 2000; however, flexion was only limited to 110 degrees in April. Although he reported being in constant pain in June 2000, during the January 2002 VA examination, he said that his feet were his biggest problem and that he was most concerned with the pain in his left hip, right knee, and lower back. Furthermore, a January 2002 private treatment record indicated that he did not have any pain with left knee motion. In September and October 2002, he reported having "severe" pain especially while navigating stairs; however, on objective examination flexion was only limited to 100 degrees in October. In January 2003, he had full range of motion. Despite the Veteran's subjective reports of "severe" pain during certain VA examinations, he had, at worst, only slight limitation of motion. Notably, when not being examined specifically for compensation purposes for his left knee, he did not complain of severe left knee pain. In fact, during private examination in January 2002, he had no left knee pain on motion. Based on the foregoing, the Board finds that the evidence preponderates against finding that the Veteran had severe painful motion. Likewise, the evidence preponderates against finding that the Veteran had severe weakness in his left lower extremity. Rather, the evidence indicates that he had, at worst, only slight weakness. In this regard, the strength was noted to be symmetrical in both quadriceps and hamstrings in April 2000. In January 2002, strength was only slightly diminished (4+/5) on the left side. In October 2002, he had normal muscle bulk and full strength bilaterally. In January 2003, strength was 5/5 in knee extension and flexion. Based on the foregoing, the Board finds that the evidence preponderates against finding that the Veteran had severe weakness. In its Memorandum Decision, the Court pointed out that the Board did not address the April 2000 VA examination report, which noted the Veteran's complaints that in prolonged periods of ambulation, his left knee subluxated approximately 40 percent of the time. To the extent subluxation is a factor including in the rating criteria under Diagnostic Code 5257, the Board points out there was no anterior, posterior, lateral or medial instability objectively observed in April 2000. There was also no anterior or posterior instability in January 2003. The Court also pointed out that the Veteran complained having difficulty with stairs, audible crepitus/clicking, and increased pain when he went to the pool and overdid the activity. The Board considered the Veteran's lay statements. The Veteran is competent to report his observations with regard to the severity of his left knee, including pain, limited mobility, crepitus, and instability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds his statements consistent with the rating assigned. To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the Board finds the specific examination findings of trained health care professionals to be of greater probative weight than the Veteran's more general lay assertions. For these reasons, the Board finds that an evaluation in excess of 30 percent for the left knee disability is not warranted for the time period prior to January 6, 2004. The Board has also considered entitlement to an increased evaluation on an extraschedular basis for the period before January 6, 2004, but application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b). There is no objective evidence that the Veteran's left knee disability presented such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. The symptoms produced by this disability consisted of limitation of motion, pain, and related findings. These symptoms encompass functional limitations, such difficulty going down stairs and ambulating for prolonged periods of time. Furthermore, higher ratings are available for more severe symptomatology and other criteria have been considered. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation, was not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). For the reasons and bases discussed above, the Board finds that the preponderance of the evidence is against the assignment of an evaluation in excess of 30 percent for the left knee disability prior to January 6, 2004. Therefore, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An evaluation in excess of 30 percent for a left knee disability status post total left knee replacement for the period prior to January 6, 2004 is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs