Citation Nr: 1330693 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 12-23 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased evaluation for total knee arthroplasty (TKA), left knee, (also known as total knee replacement) currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1963. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 2011 rating decision, by the St. Louis, Missouri, Regional Office (RO), which recharacterized the Veteran's left knee disability as total replacement, left knee, and increased the evaluation from 10 percent to 30 percent. The Veteran perfected a timely appeal to the rating assigned. In this case, VA medical records were added to the Veteran's electronic Virtual VA folder that had not been reviewed by the Agency of Original Jurisdiction (AOJ). The Board remanded this matter in June 2013 to correct the due process deficiencies caused by the AOJ's lack of review of this additional evidence. The AOJ reviewed the additional evidence and this matter has been returned to the Board for further adjudication. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Board notes that while the Veteran has filed a claim for a total disability evaluation due to individual unemployability (TDIU), this was denied by the RO in a May 2013 rating. Thus the Board need not consider whether TDIU is warranted as part and parcel of this claim pursuant to the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). | Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's left TKA is manifested by decreased range of motion, fatigue, and weakness due to deconditioning, but not by chronic residuals such as severe painful motion or weakness, ankylosis, extension limited to 30 or 45 degrees, or impairment of the tibia and fibula. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for service-connected left TKA have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a , Diagnostic Code 5055 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For an increased disability rating claim, VA is required to provide the Veteran with generic notice-that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In the present case, all necessary notice was provided to the Veteran prior to the initial adjudication of his claim in a letter dated September 2010. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) . Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, private treatment records, and VA examination reports in the paperless folder. The electronic folder has been reviewed both in VBMS as well as Virtual VA. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. The Board notes that the Veteran reported private treatment from St. Francis Medical Center, the records of which have been obtained. He also reported private treatment at Sikeston CBOC, but is not shown to have filled out a VAF-21-4152 (Medical Release Form) listing this facility, despite having been sent such forms including most recently as an attachment to an August 2012 duty to assist letter pertaining to the left knee disorder. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Also, the Veteran received multiple VA medical examinations in this case, with his most recent examination taking place in February 2013. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent features of the Veteran's left knee disorder. The reports, prepared by a competent medical expert and informed by direct inspection and interview of the Veteran, provide probative medical evidence concerning the features of disability applicable to the rating criteria in this case. The examination reports obtained contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal decided at this time. Increased Rating Factual Background and Analysis The issue on appeal involves the Veteran's contention that a higher disability rating is warranted for his service-connected left knee disorder. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examinations on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10 , 4.40, 4.45. The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2013). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2008); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2013). However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). In a November 2001 rating decision, the RO granted service connection for left knee degenerative arthritis and assigned an initial 10 percent evaluation under 38 C.F.R. § 4.71a , Diagnostic Code 5010-5260. It has continued to be evaluated as 10 percent disabling under the criteria for degenerative arthritis in subsequent rating decisions. The Veteran filed his claim for an increased rating in August 2010, in which he reported having had a total knee replacement surgery around August 2005. Via the February 2011 rating decision on appeal, the RO recharacterized the Veteran's left knee disability as total replacement, left knee, and increased the evaluation from 10 percent to 30 percent under 38 C.F.R. § 4.71a , Diagnostic Code 5055. Under Diagnostic Code 5055, for one year following implantation, the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5256, 5261 or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a , DC 5055. In this instance the Veteran filed his claim in August 2010, more than one year after he had underwent the TKA surgery, which he reported took place in 2005. Thus the 100 percent evaluation for the year following implantation is not for consideration in this matter. See 38 C.F.R. § 3.400. The effective date for an increased rating will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, provided a claim is received within one year from such date; otherwise, the effective date for an increased rating will be the date of receipt of the increased rating claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim for increase. Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. The Federal Circuit recently reaffirmed that "the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). The Board shall now consider whether a rating in excess of the minimum 30 percent rating is warranted for the residuals under Diagnostic Code 5055, including by analogy to the other Codes 5256, 5261 or 5262, as well as any other potentially applicable Codes. Diagnostic Code 5256 provides for the assignment of a 30 percent rating when there is ankylosis in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. A 40 percent rating is assigned when there is extremely unfavorable ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is warranted when there is extremely unfavorable ankylosis in flexion between 20 and 45 degrees. A 60 percent rating is warranted when there is extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a , DC 5256. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to 5 degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. 38 C.F.R. § 4.71a , DC 5261. Under Diagnostic Code 5262 a 40 percent rating requires nonunion of the tibia and fibula with loose motion, requiring use of a brace. Malunion of the tibia and fibula with marked knee or ankle disability allows for the assignment of a 30 percent rating; with moderate disability, 20 percent; and with slight disability, 10 percent. 38 C.F.R. § 4.71a , DC 5262. Standard range of knee motion is from 0 degrees (extension) to 140 degrees (flexion). 38 C.F.R. § 4.71 , Plate II (2013). Additionally, when assigning disability evaluations, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. For example, the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation under Diagnostic Code 5165. 38 CFR § 4.68 (2012). Also potentially relevant here, the rating for amputation not improvable by prosthesis controlled by natural knee action is 60 percent. 38 C.F.R. § 4.71a , Diagnostic Code 5164 (2013). The combined evaluation for each lower extremity (to include above and below the knee) may not exceed 60 percent. Additionally, under Diagnostic Code 5260 a zero percent rating is provided where flexion of the leg is limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a , DC 5260. Under Diagnostic Code 5257, knee impairment with recurrent subluxation or lateral instability warrants a 10 percent rating if it is slight, a 20 percent rating if it is moderate, or a 30 percent rating if it is severe. 38 C.F.R. § 4.71a , DC 5257. Among the evidence pertinent to this appeal are VA treatment records from 2009 to 2011, which showed no major findings regarding the knee other than the diagnosis of degenerative joint disease (DJD) status post left knee replacement (TKA), as noted in records from April 2009, February 2010 November 2010 and September 2011, with the treatment being Naproxen. He was noted in November 2010 to have a mild laceration on his left side 3 weeks ago after falling on concrete, although it was not made clear whether the fall resulted from any issues with the left knee. He was noted to have refused X-rays. Private medical records from 2010 to 2011 revealed that in September 2010 he was seen for a first time evaluation for pain in the left knee, with history that included osteoarthritis (OA) and left TKA in 2004. On examination he had mild pain of the left knee, with the impression of left knee pain. On recheck in October 2010, he was noted to have recently fallen down steps with a contusion on the anterior aspect of the knee and abrasion, with the wounds dressed. A bone scan done the same month gave an impression of the left knee prosthesis in place with no scintiographic evidence of infection or loosening. In December 2010 and January 2011 he was seen in the pain clinic for left lower extremity pain that extended from the thigh to his knee and was attributed to lumbar spine pathology rather than TKA residuals. He was noted to undergo lumbar epidural injections to address this. An October 2010 VA examination of the joints noted the Veteran to report having a generalized stiffness of the left knee in the morning, as well as giving way sensation particularly with the first steps after sitting extended or getting up in the morning. He denied swelling or locking. He reported increased pain after standing or walking for about 15-20 minutes. His worst pain was when he tried to sleep at night because of aching to his knee. His medications were over the counter Naproxin in the morning and evening. He indicated this helped. He used no assistive device. His gait was slightly abnormal due to the TKA but appeared strong and steady. Regarding his functional impairment occupationally, he reported having worked as a self employed bartender/bar owner prior to his surgery. This TKA would not prevent him from being employable. He would have difficulty with extended standing, squatting and laboring kind of work. He was able to take care of himself. He would be limited in extended standing or labor type of work. No incapacitation was noted. Tests for instability were negative. He was able to squat to 50 percent of a normal squat. Muscle testing was negative for atrophy. He complained of generalized stiffness in his knee with no other abnormality. His range of motion was 0-96 degrees, unchanged by 3 repetitions, both active and passive. The diagnosis was left knee TKA. The report of a May 2012 VA examination of the knee and leg noted a history of left knee TKA surgery in 2004, with current complaints of ongoing daily discomfort to the anterior patellar region and intermittent swelling. He had flareups that impacted his function of the lower leg, with any activities of prolonged standing or walking resulting in the left knee getting tender and having swelling. He was unable to squat. He had great difficulty attempting to kneel, except at short intervals during church. His range of motion was limited as he could not fully extend, with extension ending at 5 degrees. His motion was 5-70 degrees with painful motion at 0 degrees flexion and no pain on extension. He could perform repetitive motion with motion after 3 repetitions shown to be 5-55 degrees. He had additional loss of motion and function after repetitive testing. He had less movement than normal, weakened movement and excess fatigability of the left knee. He had pain on movement with swelling, disturbance of locomotion, and interference with sitting, standing and weight bearing. He had 5/5 strength on flexion and extension of the right knee. All joint stability tests were normal. There was no evidence of patellar subluxation or dislocation. The report of a February 2013 VA examination for a diagnosed left knee replacement revealed the Veteran denied any flare-ups impacting the function of the knee/lower leg. His range of motion was 0-90 degrees, with painful motion beginning at the ends of motion. He was able to perform repetitive testing with no change in motion after 3 repetitions. His functional loss was less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion and interference with sitting, standing and weight bearing. He had pain on palpation. His left knee had 4/5 strength on flexion and extension. All tests for stability were normal. There was no evidence of recurrent patellar subluxation or dislocation. He had no history of "shin splints" or meniscectomy, although he had a TKA, with an intermittent degree of residual weakness, pain or limitation of motion. There was no scar and he used no assistive devices. His function was not so diminished that an amputation with prosthesis would equally serve him. X-ray showed no evidence of patellar subluxation. The knee replacement was visualized. The disability did impact his ability to work, with problems doing any lifting, carrying, climbing stairs, bending, standing, sitting and walking. In considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to a rating in excess of 30 percent for his service-connected DJD of the right knee post total knee arthroplasty with history of laxity since December 1, 2009. As an initial matter, the Board has considered entitlement to a higher rating under Diagnostic Codes 5256, 5261, and 5262, as directed by Diagnostic Code 5055. The Board notes his residuals of a total right knee arthroplasty are not characterized by nonunion of the tibia and fibula with loose motion requiring a brace, as there is no evidence of any assistive devices used. Malunion or nonunion of the tibia and fibula was not shown. Indeed, reference is made to a post-surgical radiographic evidence that showed that the prosthesis was in satisfactory position, and that there were no osseous abnormalities. Specifically the October 2010 bone scan revealed the left knee prosthesis was in place with no scintiographic evidence of infection or loosening. The Veteran, therefore, is not entitled to a compensable rating, much less a rating in excess of 30 percent, pursuant to Diagnostic Code 5262 for impairment of the tibia and fibula. There is also no evidence that the Veteran's right knee is ankylosed. A higher (or compensable) rating under Diagnostic Code 5256 is also not warranted. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Here, as noted, the record shows that the Veteran retains an active although limited range of motion. In any event, a compensable rating under Diagnostic Code 5256 for ankylosis of the knee is not warranted. The Veteran's range of motion of the right knee measured flexion to 90 degrees, according to the most recent February 2013 VA examination. Such does not warrant a compensable rating under Diagnostic Code 5260 for limitation of flexion. The earlier VA examination and treatment records also reflect noncompensble measurements for flexion. Even though the most severe limitation of motion was recorded in a May 2012 VA examination with painful flexion from 0 to 70 degree, with it reduced to 55 degrees after 3 repetitions, this still does not warrant a 10 percent rating. The Veteran's limitation of extension of the right knee likewise is shown to be noncompensable, measuring 0 degrees on the most recent VA examination of February 2013, and at its worst 5 degrees shown in the May 2012 examination, including on repetitive motion. However, this limitation of extension does not warrant a 10 percent rating under Diagnostic Code 5261. At present, he is in receipt of the minimum 30 percent rating under Diagnostic Code 5055, so he is in a more favorable position currently than if he were rated by analogy to Diagnostic Code 5256, 5261, or 5262. Regarding consideration under Diagnostic Codes 5260 for limited flexion and 5257 for knee impairment with recurrent subluxation or lateral instability, the Veteran is already in receipt of the maximum allowable rating contemplated by these Diagnostic Codes, and the evidence fails to show symptoms that would meet even a zero percent rating under either Diagnostic Code. The Board observes that the Veteran has complained of pain in the right knee as well as stiffness, weakness, incoordination, and swelling. He also reported he had difficulty with prolonged walking or standing, as well problems being unable to kneel or fully squat. This caused disturbance of locomotion, and interference with sitting, standing and weight bearing as reported in the May 2012 VA examination. The February 2013 VA examination likewise showed functional loss was less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion and interference with sitting, standing and weight bearing. However, while the above discussed VA examination reports have shown objective evidence of pain with active and repetitive limited range of motion, the evidence does not show that the Veteran requires the use of an assistive device, and even with limitations due to repetitive use, the motion remains at a noncompensable level on flexion and extension. There is not instability shown and his muscle weakness alternates between 5/5 and at worst, 4/5. The Board does not believe this minimal functional impairment rises to the level of "chronic residuals consisting of severe painful motion or weakness in the knee" necessary to establish a higher rating under Diagnostic Code 5055. In consequence, a higher rating based on pain and the other DeLuca factors is not warranted in this appeal. 38 C.F.R. §§ 4.40 , 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In light of the above, the Board finds that a preponderance of the evidence is against the claim of entitlement to an increased disability rating for residuals of left knee TKA in this case. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's left knee disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER Entitlement to a disability evaluation in excess of 30 percent for total knee arthroplasty (TKA), left knee is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs