Citation Nr: 1334365 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-38 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 30 percent for status post-total right knee arthroplasty, from August 1, 2011, forward. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1972. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2007 rating decision in which the RO in Roanoke, Virginia, denied entitlement to an increased rating for post-operative right knee arthrotomy and reconstructive surgery with instability. During the pendency of the appeal, in October 2010, the RO recharacterized the Veteran's disability as status post-total right knee arthroplasty and granted an increased rating, 100 percent, from June 9, 2010, to July 31, 2011, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. A 30 percent rating was assigned for post-operative residuals from August 1, 2011. Because the Veteran received a full grant of the benefits sought on appeal for the period from June 9, 2010, to July 31, 2011, the Board found in a June 2012 decision that there was no justiciable issue for it to decide for that period. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Additionally, in June 2012, the Board granted a 30 percent rating for post-operative right knee arthrotomy and reconstructive surgery with instability, prior to June 9, 2010. The Board also granted a separate 10 percent rating for post-operative right knee arthrotomy and reconstructive surgery with degenerative joint disease prior to June 9, 2010. The Veteran is also in receipt of a total disability rating based upon individual unemployability, effective from January 31, 2012. Moreover, the Board remanded this matter to obtain outstanding VA treatment records and to schedule the Veteran for a VA knee examination. Based on this procedural history, the issue on appeal has been recharacterized as indicated on the cover page of this decision. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's right knee disability, status post total knee replacement, has not been manifested by severe painful motion or weakness; ankylosis in flexion between 10 and 20 degrees; extension limited to 30 degrees; or nonunion of the tibia and/or fibula with loose motion, requiring a brace. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for a total right knee replacement have not been met, from August 1, 2011, forward. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5055, 5256, 5257, 5260, 5261, 5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has satisfied its duty to notify by issuing notice letters in June 2007, July 2008, and July 2012. These letters advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. These letters provided notice informing the Veteran that to substantiate his increased evaluation claim, he needed to submit evidence that his service-connected disability had increased in severity. The letter sent in July 2012 complied with instructions in the June 2012 Board remand. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA compensation examinations in April 2012 and August 2012. The examinations were adequate because they were based on thorough examinations, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests. In June 2012, this matter was remanded to allow the Veteran's updated VA treatment records to be obtained. A VA examination was then to be conducted to determine the current severity of his right knee disorder and its associated functional loss to supplement the findings from the April 2012 examination. Updated treatment records are contained in the claims file and such an examination was conducted in August 2012. The Board therefore concludes that there has been substantial compliance with the terms of the previous remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Increased Evaluation Claims Although the Veteran contends that his right knee disorder is more severe than reflected by his current disability rating, the preponderance of the evidence is against the claim and the appeal will be denied. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in the disability rating is at issue, as is the case here, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Right Knee Disorder As noted in the Introduction, the Veteran underwent a total right knee arthroplasty on June 9, 2010. As such, the RO recharacterized the Veteran's disability as status post-total right knee arthroplasty and granted an increased, 100 percent rating from June 9, 2010, to July 31, 2011, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. According to this diagnostic code, a knee replacement is to be rated as 100 percent disabling for a minimum of one year following implantation of the prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Thereafter, the knee should be rated pursuant to the criteria found in Diagnostic Code 5055 or by analogy to Diagnostic Codes 5256, 5261, or 5262 on the basis of limitation of motion, with a minimum rating of 30 percent. Id. By rating decision dated in October 2010, the RO assigned the minimum 30 percent rating to be effective as of August 1, 2011. For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5262, pertaining to "impairment of tibia and fibula," a 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating contemplates malunion with moderate knee or ankle disability, and a 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion, requiring brace. The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The evidence of record after August 1, 2011 includes private treatment records, VA treatment records, and two VA compensation examinations. The private treatment records detail the Veteran's post-surgery recovery. In August 2011, his right knee was noted to "feel all right" with some "posterior pain." He described his pain as mild, 3-4. In November 2011, his right side was "comfortable," and he was "able to do his normal activities without significant pain." He described his pain as minimal, 1-2. He had range of motion from 0 to 120 degrees and no instability on both occasions. X-rays showed no change in the position of the right knee implant. There was no significant change in alignment and no evidence of fracture, dislocation, or bony erosion. There were two large loose bodies projecting posterior to the knee. The VA treatment records note the knee replacement as part of his past medical history and the associated disability claim, but nothing pertinent to the present appeal. The Veteran was afforded a VA examination in April 2012 as part of a claimed left knee disability that was caused or aggravated by his service-connected right knee disability. Its purpose was not to evaluate the severity and nature of the Veteran's right knee. Nevertheless, due to the nature of the Veteran's service connection claim, the examiner conducted a physical evaluation of the right knee. The examiner measured the Veteran's right knee flexion at 120 degrees, with painful motion beginning at 120 degrees. Right knee extension was measured at 0 degrees. Right knee range of motion repetitive testing yielded the same range of motion results. The Veteran had less movement than normal, weakened movement, and pain on movement. There was pain to palpation. Muscle strength on knee flexion and extension was 3/5. There was posterior, anterior, and medial-lateral instability of 2+. There was no subluxation of the right knee. The examiner found the Veteran to have intermediate degrees of residual weakness, pain, and limitation of motion. It was noted that the Veteran used a cane and a brace. No subjective history of complaints related to the right knee was solicited from the Veteran. Additionally, the examiner did not provide any opinion regarding the impact of the Veteran's right knee on his occupational functioning. Therefore, the Board remanded for another examination. The Veteran's second VA examination occurred in August 2012. The examiner detailed the Veteran's history of the knee injury and its impact upon his occupational functioning. Specifically, the examiner noted the Veteran worked for the Postal Service upon discharge until 2011, noting his work in various capacities and the need to compensate for the pain and instability in his right knee. The Veteran reported experiencing "significant pain, stiffness, and swelling" after surgery that required him to retire. At the time of the examination, the Veteran reported being able to walk one block and using a knee brace, with flare-ups caused by increased activities. The examiner measured the Veteran's right knee flexion at 120 degrees, with moderate discomfort through the range, and resistance at 110 degrees. The examiner found normal extension. Repetitive movement testing caused no change in "motion, weakness, fatigue, or incoordination." The Veteran reported losing about 20 degrees of motion with slight swelling and stiffness due to intermittent flare-ups caused by weather and increased activity. There was moderate "medial/lateral" and "anterior/posterior" instability with testing. The examiner noted that the right knee had normal alignment with no swelling, warmth, or discoloration. The examiner further found the Veteran's employment prospects were limited by the pain and instability in his right knee and the use of narcotic medication to treat the pain. Analysis The Veteran's service-connected right knee disability, status post total knee replacement, is rated as 30 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. Again, Diagnostic Code 5055 pertains to knee replacements with prosthesis. The minimum rating under this Diagnostic Code is 30 percent for intermediate degrees of residual weakness, pain or limitation of motion, to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. A higher, 60 percent, evaluation is available under Diagnostic Code 5055 in cases where the knee replacement results in chronic residuals consisting of severe painful motion or weakness in the affected extremity. In this case, the evidence does not show that the Veteran has experienced chronic right knee residuals consisting of severe painful motion or weakness during the appellate period. While the Veteran has continued to complain of right knee pain and weakness subsequent to his 2010 right knee replacement, the preponderance of the evidence does not show that it is severe in nature or degree. Private records shows that the Veteran described his right knee pain and mild and minimal in August 2011 and November 2011, respectively. Only moderate discomfort was noted on range of motion of the right knee on VA examination in August 2012. Range of motion testing on numerous examinations has been from 0 to 120 degrees. And in April 2012, the VA examiner noted strength of 3/5 on flexion and extension of the right knee. That examiner determined that the Veteran had intermittent degrees of residual weakness, pain, or limitation of motion. In addition, only moderate instability of the right knee was shown in April 2012 (e.g., 2+). The Board finds that these complaints and objective findings are not commensurate with severe painful motion or weakness as contemplated by the next-higher 60 percent rating. Accordingly, the Board finds that a 60 percent rating is not warranted under Diagnostic Code 5055. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). For ratings below 60 percent, Diagnostic Code 5055 states that residual weakness, pain or limitation of motion are to be rated by analogy to diagnostic codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). In this case, however, the evidence does not show that the Veteran's right knee is ankylosed. He has consistently demonstrated range of motion form 0 to 120 degrees. Accordingly, a rating in excess of 30 percent is not warranted under Diagnostic Code 5256. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2012). In addition, the evidence does not show that the Veteran experiences nonunion of the tibia and fibula with loose motion. X-rays showed no change in the position of the right knee implant. There was no significant change in alignment and no evidence of fracture, dislocation, or bony erosion. Accordingly, a rating in excess of 30 percent is not warranted under Diagnostic Code 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012). As noted above, the evidence shows that the Veteran's right knee has normal extension to 0 degrees. Accordingly, a rating in excess of 30 percent is not warranted under Diagnostic Code 5261, as extension has not been limited to 30 degrees at any time. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Lastly, the evidence in this case shows that the 30 percent rating assigned appropriately compensates the Veteran to the extent that he does have functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.4; DeLuca. The VA examination reports clearly reflect that the Veteran's range of motion has been affected by some pain and weakness; however, he was still able to accomplish right knee range of motion as noted above (i.e., flexion to 120 degrees and normal extension to 0 degrees). Moreover, the Veteran's flexion and extension measurements of the right knee do not even meet the requirement for 0 percent ratings under DCs 5260 and DC 5261 (i.e., flexion limited to 60 degrees and extension limited to 5 degrees). Thus, separately compensable disability ratings for limitation of flexion and extension are not warranted and it would not be more beneficial to the Veteran to rate his right knee disorder under DCs 5260 and DC 5261 (as opposed to DC 5055). Limitation of flexion of the right knee to 120 degrees would warrant no more than 10 percent (based upon painful motion, 38 C.F.R. §§ 4.40, 4.45) and limitation of extension would be noncompensable, as it was shown to be full to 0. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. And to assign separate ratings under DC 5260, 5261, and/or DC 5257, in addition to DC 5055, would constitute pyramiding, as DC 5055 contemplates severe painful motion and weakness. In sum, the evidence preponderates against finding that, at any pertinent point during the appellate term at issue that symptoms of pain, fatigue, weakness, lack of endurance, and/or incoordination were so disabling to support assignment of a rating in excess of 30 percent from any applicable diagnostic code predicated on limitation of motion. See DeLuca, supra. The Veteran has not raised, and the evidence does not suggest that referral for an extra-schedular evaluation is warranted. The Veteran's symptoms are addressed by the rating criteria discussed above, and such a referral is appropriate where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). 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 and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, 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. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disability rating for his right knee inadequate. The Veteran's right knee disability was rated under Diagnostic Code 5055 in 38 C.F.R. § 4.71a, the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. The Veteran's right knee disability is manifested by well-defined symptomatology. For example, the Veteran's right knee, status post replacement, is productive of flexion limited to 120 degrees; intermediate degrees of residual weakness, pain, or limitation of motion; and moderate instability. These symptoms fit squarely within the rating criteria under DC 5055. ORDER Entitlement to a rating in excess of 30 percent for status post-total right knee arthroplasty from August 1, 2011, forward is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs