Citation Nr: 1335977 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-33 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE What evaluation is warranted for a left knee disability, status post total replacement, from December 1, 2012? REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from June to November 1980, and from January 1983 to July 2005. This matter initially came before the Board of Veterans' Appeals (Board) from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In that decision, the RO granted entitlement to service connection, in pertinent part, for left knee arthritis and assigned a 10 percent rating, effective August 1, 2005. The Veteran timely appealed the assigned ratings. On October 18, 2011, the Veteran underwent total left knee replacement surgery and was granted a 100 percent rating for the year following this surgery, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. This rating was reduced to 30 percent effective December 1, 2012. In March 2012, the Veteran testified during a hearing at the RO before the undersigned. In June 2012, the Board, in pertinent part, denied entitlement to higher initial rating for left knee arthritis from August 1, 2005 to October 17, 2011. The Board remanded the question of entitlement to a rating higher than 30 percent from December 1, 2012, to the RO, via the Appeals Management Center (AMC), for additional development. For the reasons stated below, the RO/AMC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT Since December 1, 2012 the Veteran's left knee disability, status post total knee replacement, has not been manifested by a severe limitation of left knee motion (to include as due to pain), severe weakness, ankylosis in flexion between 10 and 20 degrees, extension limited to 30 degrees, or nonunion of the tibia or fibula with loose motion, requiring a brace. CONCLUSION OF LAW From December 1, 2012, the criteria for a rating in excess of 30 percent for left knee disability, status post replacement, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5010-5055, 5256, 5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA had fulfilled its duty to assist the Veteran with obtaining identified and available evidence needed to substantiate his claims, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony, and he testified at the March 2012 hearing. A VA examination was conducted in August 2013 pursuant to the Board's remand instructions and, for the reasons indicated below, was adequate. In sum, there is no evidence of a VA error in notifying or assisting him that reasonably affects the fairness of the adjudication. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. 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. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, a uniform 30 percent rating from December 1, 2012 is proper. As noted above, the Board rendered a decision addressing what rating was warranted for a left knee disorder prior to knee replacement surgery leaving only the question whether a rating in excess of 30 percent is warranted from December 1, 2012. For the following reasons, the Board finds that it is not. The diagnostic code applicable to knee replacement is 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5055, a 100 percent rating is warranted for one year following implantation of the prosthesis, as was awarded in this case. Following this one year period, the minimum rating is 30 percent. A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residuals weakness, pain, or limitation of motion are rated by analogy to diagnostic codes 5256, 5261, or 5262. The first question the Board must answer is therefore whether the residuals of the replacement surgery more nearly approximate intermediate degrees of weakness, pain, or limitation of motion or are chronic with severe painful motion or weakness. The terms severe and intermediate are not defined in the regulation. For the following reasons, the Board finds the residuals more nearly approximate the intermediate degrees described in the regulation. The primary evidence of the Veteran's left knee symptoms since December 1, 2012 is the August 2013 VA examination report. As discussed in more detail below, the range of left knee motion, with pain, prior to repetitive motion testing was from 70 degrees of flexion degrees to 25 degrees of extension. After repetitive motion testing flexion was to 60 degrees and extension was to 25 degrees. Further, after repetitive motion testing, there was less movement than normal, pain on movement, and disturbance of locomotion. The Veteran's report of his flare-ups was that there was additional loss of range of motion of the knee during flare-ups due to pain, with left knee extension indicated as 0 degrees (no loss in extension) and left knee flexion 0 to 60 degrees. There was tenderness or pain on palpation. Muscle strength testing was 5/5 in flexion and extension. All joint stability tests were normal. Shin splints were noted. The examiner characterized the residuals as "intermediate degrees of residual weakness, pain or limitation of motion." The examiner indicated that the Veteran occasionally used a brace and regularly used a cane. The Veteran's left knee disability was described as impacting his ability to climb up and down stairs, and do any prolonged standing and walking. The examiner opined that the appellant needed to avoid squatting and kneeling. While an examiner's characterization of the level of disability is not binding on the Board, the August 2013 examiner's characterization is consistent with the examination findings and the other evidence of record, and to therefore be of significant probative weight. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. Feb 10, 2009) ("The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability"). As indicated below, even considering additional functional loss from flare-ups or after repetitive motion testing, any limitation of flexion was noncompensable and limitation of extension warranted an intermediate, 30 percent rating. Significantly, muscle strength was a normal 5/5. These findings demonstrate that there has been no evidence of weakness and that painful motion did not limit flexion to a compensable degree, or limit extension to a severe degree as indicated by one of the two highest ratings of 40 or 50 percent available under the applicable diagnostic code. The VA treatment records since the replacement surgery are consistent with these findings. For example, a January 2013 VA treatment note indicated that the Veteran worked in the tool room at an Air Force base and used to be a power lifter. His knee was getting better but was still stiff and painful, so his activity level was not what is used to be. The note indicated that the Veteran would try to increase his activity level and watch his diet. Further, the evidence reflects that the Veteran's symptoms did not more nearly approximate chronic residuals consisting of severe painful motion or weakness in the affected extremity. Neither the Veteran nor his representative explicitly indicated that the appellant experienced such residuals, and to the extent they implicitly did so, the specific examination findings by a trained health care professional are of greater probative weight than the claimant's more general lay assertions. As the residuals are thus intermediate, they must be rated by analogy to diagnostic codes 5256, 5261, or 5262. The Veteran's left knee disability is also rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under this diagnostic code, degenerative or traumatic arthritis substantiated by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. The appropriate diagnostic codes for the knee joint are Diagnostic Codes 5260 and 5261, applicable to limitation of flexion and extension of the leg, respectively. Under Diagnostic Code 5260, limitation of flexion of a leg warrants a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a limitation of extension of a leg is noncompensable when extension is limited to 5 degrees, warrants a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). When assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider additional functional impairment above and beyond the limitation of motion demonstrated on a particular range of motion test, such as when symptoms are most prevalent ("flare-ups") due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination - assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In addition Diagnostic Code 5256 provides for ratings for ankylosis, but as indicated below, there is no ankylosis in this case. On the August 2013 VA examination, the examiner indicated that the Veteran reported that flare-ups impacted the function of the left knee and/or leg. The Veteran's report of his flare-ups was that there was additional loss of range of knee motion due to pain, with left knee extension indicated as 0 degrees (no loss in extension) and flexion limited to 60 degrees. On examination, left knee flexion was to 75 degrees with evidence of painful motion at 70 degrees. After repetitive use testing, left knee flexion was to 65 degrees, and extension was full at zero degrees. In response to the question select where post-test extension begins, the examiner indicated "0 or any degree of hypertension." That is, the examiner found no limitation of extension. The examiner indicated that there was additional limitation in range of motion of the lower leg following repetitive use testing, there was functional loss and/or impairment of the knee and lower leg, and the contributing factors were less movement than normal, pain on movement, and disturbance of locomotion. There was also tenderness or pain to palpation for joint line or soft tissue of the knee. The above range of motion figures, although stated somewhat unclearly, indicate that, even after repetitive motion testing and based on the Veteran's own report of flare-ups, extension was not limited to more than 25 degrees and flexion was not limited to less than 60 degrees. These range of motion figures preponderate against assigning a rating in excess of 30 percent. The rating for limitation of flexion would be noncompensable, and the rating for extension would be 30 percent. Hence, in combination these limitations would not result in a rating greater than the 30 percent he is currently receiving. Although the Veteran experienced pain, that pain did not limit his motion to the extent to which it would warrant a higher rating under either Diagnostic Code 5260 or 5261, and therefore does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) ("pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system"). As there is no evidence of ankylosis, the Veteran would not be entitled to a higher rating under Diagnostic Code 5256. All joint stability testing was normal, so the Veteran would not be entitled to a higher or separate rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability, notwithstanding his occasional use of a brace and regular use of a cane. There was also no evidence of dislocated semilunar cartilage or impairment of the tibia or fibula to warrant a separate or higher rating under Diagnostic Codes 5258 and 5262. As the Veteran is not entitled to a rating higher than 30 percent under Diagnostic Codes 5256, 5260, 5261, or any other potentially applicable diagnostic code, he is not entitled to a schedular rating higher than the minimum 30 percent he is currently receiving under Diagnostic Code 5055. As to whether this issue warrants referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's left knee disability are fully contemplated by the applicable rating criteria. The criteria include both the general level of severity of post operative residuals as well as specific symptoms of ankylosis, limitation of motion to include additional functional limitation during flare-ups or on repetitive motion testing, recurrent subluxation or lateral instability, dislocated semilunar cartilage, and impairment of the tibia and fibula. These criteria are broad enough to encompass the symptoms caused by the Veteran's left knee disability from December 1, 2012. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that his symptoms have otherwise rendered impractical the application of the regular schedular standards. Although the Veteran indicated that his left knee impacted his ability to climb up and down stairs, do any prolonged standing and walking, and caused him to avoid squatting and kneeling at work, there was no indication that this impact caused marked interference with employment, i.e., beyond that contemplated by the assigned 30 percent rating. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"). Therefore, referral for consideration of an extraschedular rating for left knee disability, status post total replacement, from December 1, 2012 is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a rating in excess of 30 percent at any time since December 1, 2012. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an increased rating for this time period must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to a rating in excess of 30 percent for left knee disability, status post total replacement, from December 1, 2012, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs