Citation Nr: 1510455 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 08-26 211A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a rating in excess of 30 percent for right total knee arthroplasty, to include restoration of a 60 percent disability rating, from May 1, 2008, to October 30, 2011, and from December 1, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from October 1975 to October 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut, which implemented the proposed reduction in service-connected disability compensation for right total knee arthroplasty from 60 percent to 30 percent, effective from May 1, 2008. When the case was before the Board in January 2012, it was remanded for further development. While the case was in remand status, the Appeals Management Center (AMC) issued a September 2012 rating decision granting a temporary total (100 percent) evaluation from October 31, 2011, to November 30, 2011, for convalescence required as a result of an arthroscopic procedure performed on October 31, 2011. The issue on appeal has been recharacterized accordingly. The Board considered this appeal again in November 2013, and remanded this issue for further development in order to conduct another VA examination and request more recent private treatment records from the Veteran. That development was completed, and the case returned to the Board for further appellate review. FINDINGS OF FACT 1. During the period from May 1, 2008, to October 30, 2011, the Veteran's right knee disability has been manifested by intermediate degrees of residual weakness, pain or limitation of motion. 2. Since December 1, 2011, the Veteran's right knee disability has been manifested by intermediate degrees of residual weakness, pain or limitation of motion. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for right total knee arthroplasty, to include restoration of a 60 percent disability rating, from May 1, 2008, to October 30, 2011, and from December 1, 2011, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.45, 4.7, 4.71a, Diagnostic Codes 5003, 5055, 5256-5263 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his right total knee arthroplasty (hereinafter "right knee disability") is more severe than currently rated at 30 percent for the periods from May 1, 2008, to October 30, 2011, and from December 1, 2011, thereafter. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055 (2014). Since the Veteran was already receiving the maximum (i.e. 100 percent) schedular benefit from October 31, 2011 to November 30, 2011, a higher schedular rating is not possible during that period. Accordingly, the Board need not discuss any treatment reports or examination findings that occurred during this period that the Veteran received the maximum schedular benefit. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the current appeal. Several diagnostic codes are potentially applicable to the rating of a knee disability. First, under 38 C.F.R. § 4.71a , DC 5003, degenerative arthritis established by x-ray findings will be 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 of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under 38 C.F.R. § 4.71a, DC 5055 (for knee replacement (prosthesis)), a 100 percent rating is to be assigned for one year following implantation of the prosthesis. With chronic residuals consisting of severe painful motion or severe weakness in the affected extremity, a 60 percent rating is warranted. Intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to DCs 5256, 5261, or 5262. The minimum rating is 30 percent. Under 38 C.F.R. § 4.71a, DC 5260, if flexion of the knee is limited to 45 degrees, a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees, a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees, a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, DC 5261, if extension of the knee is limited to 10 degrees, a 10 percent rating is in order. If extension of the knee is limited to 15 degrees, a 20 percent rating is in order. If extension of the knee is limited to 20 degrees, a 30 percent rating is in order. If extension of the knee is limited to 30 degrees, a 40 percent rating is in order. If extension of the knee is limited to 45 degrees, a 50 percent rating is in order. Full range of motion for the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II (2014). Other diagnostic codes pertaining to the knee include DC 5256 (ankylosis), DC 5257 (recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (removal of semilunar cartilage), DC 5262 (impairment of tibia and fibula) and DC 5263 (genu recurvatum). As noted below, these diagnostic codes are not applicable because the Veteran does not exhibit the relevant pathologies. VA's General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under DC 5260 and a compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in different planes of movement were each compensable. Id. VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disability includes both arthritis and instability. VAOPGCPREC 23-97 (July 1, 1997). After a full review of the record, and as discussed below, the Board concludes that a rating in excess of 30 percent for right total knee arthroplasty, to include restoration of a 60 percent disability rating, from May 1, 2008, to October 30, 2011, and from December 1, 2011is not warranted. Private treatment records from June 2008 show that the Veteran's right knee exhibited no swelling or synovitis. The incision from his previous surgery was well healed, and his pain was minimal. Range of motion showed flexion between 85 and 90 degrees, and full extension. A follow-up visit in February 2009 showed that the Veteran twisted his knee snowboarding and had squeaking anteriorly that was felt by the private physician. However, there was no significant swelling noted. Range of motion testing revealed flexion from 85-90 degrees, and full extension. The physician commented that "X-rays do not show anything but a little calcification on the patellar component." On VA examination in February 2010, the examiner noted that the Veteran has had two previous knee surgeries, once in May 1997, and another in June 2006. The Veteran told the examiner that he had not received specific treatment for the right knee since 2007. The Veteran also explained that he was able to return to his job as a postal carrier after his last surgery, but that he had missed "a couple of days" of work due to knee pain in the past 12 months. He continued to report limitation of flexion with good/full extension, but he was generally still favoring his right side, which caused him to wear out his right shoe more frequently. There were no foot calluses, but he did endorse pain as a 6 out of 10, and constant soreness that was generally related to overuse. On physical examination, the Veteran's right knee showed two well healed surgical scars (18 centimeters, and 14 centimeters) that were numb, and had no open lesions. Range of motion testing revealed flexion from 0 to 70 degrees, with no change after repeated testing. He exhibited pain at the end of the flexion point, but the examiner noted no weakness, fatigability, or incoordination. There was tenderness to palpation of the medial and lateral knee joint areas, but no varus or valgus deformity present. Testing was negative for McMurray, Lachman, or Drawer's. There was no ankylosis. Radiographic imaging of the right knee showed there was progressing lucency surrounding the metal bone interface in the stem of the tibial component as well as laterally. On the lateral view, increased lucency was developing surrounding the femoral component of the hardware. No breakage was present, and scattered areas of soft tissue ossification were noted that was unchanged. There was no evidence for acute fracture. The examiner opined that the Veteran still has limitation of flexion as well as bony deformity and soft tissue swelling, but was negative for DeLuca factors. Private treatment records from July 2011 show that the Veteran had increasing pain in his right knee. Physical examination revealed no swelling or synovitis, and his surgical incisions were well healed. Range of motion testing showed flexion from 0 to 70-75 degrees. X-rays showed a little osteolysis around the femoral component, and there was a well-maintained tibia with a stem and a wired tibial tubercle from an osteotomy. In October 2011, the Veteran made a preoperative visit prior to his right knee arthroscopy later that month. The physician found moderate synovitis, pain, and some ossification upon examination of the Veteran. The physician noted that the Veteran planned to retire from the postal service in the near future. The last record of private treatment found in the record is from January 2012. The Veteran visited the same private physician for a follow-up after his right knee arthroscopy. Physical examination revealed no swelling or synovitis. He had flexion from 0 to 90 degrees, and full extension. The Veteran was noted to be able to "walk without any limitations." The physician opined that the Veteran's condition was "stable, post synovectomy and manipulation." The Veteran was to return for another follow-up visit in six months. The Board notes that these records from the follow-up visit after January 2012 were requested from the Veteran. However, the Veteran did not respond to the request. On VA examination in February 2012, the Veteran stated that after his right knee arthroscopy in October 2011, he took sick leave from work and never returned because he retired in January 2012. During the examination, he reported knee pain and inflexibility. He stated that it hurts to stand or sit in one position for too long, that he has to alter his body when he gets in and out of the car or sitting in a chair, and that it hurts to walk long distances. He reported that flare-ups do not impact the function of his knee and/or lower leg. Range of motion testing revealed the same results before and after repetitive use testing, with no pain: flexion from 0 to 70 degrees, and full extension. There was no additional limitation in range of motion of the knee following repetitive use testing. The Veteran did have functional loss and/or functional impairment in the right knee as shown by the following factors: less movement than normal, disturbance in locomotion, and interference with sitting, standing, and weight-bearing. The Veteran had tenderness or pain to palpation for joint line or soft tissue of the right knee. Muscle strength testing revealed right knee flexion and extension as both 5/5. Joint stability testing was not able to be tested at this time. However, there was no evidence or history of recurrent patellar subluxation/dislocation. There were no other additional conditions noted. The examiner noted that the Veteran's scars from his two knee surgeries were not painful and/or unstable, and the total area of all related scars was not more than 39 square centimeters. The examiner opined that residuals of the Veteran's two prior knee replacement surgeries resulted in intermediate degrees of residual weakness, pain or limitation of motion. The examiner noted that there were no residual signs or symptoms attributable to the Veteran's right knee arthroscopy in October 2011. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms noted by the examiner. The Veteran was not found to use an assistive device as a normal mode of locomotion. Imaging studies of the right knee did not show degenerative or traumatic arthritis. There was no X-ray evidence of patellar subluxation. Significant diagnostic test findings include progressive lucency surrounding the metal bone interface involving the femoral component as well as the tibial component. There was suspected to be developing lucency in the femoral and tibial component. There was no breakage noted, but there were scattered areas of soft tissue ossification. No evidence of acute fracture was found. The examiner opined that the Veteran's knee condition did not impact his ability to work, and that he is attending school full time to pursue a career in nursing since his retirement from the post office. The Veteran received another VA examination in January 2014. He endorsed symptoms of right knee pain at times, stiffness, aches, trouble manipulating in tight areas, and difficulty traversing stairs. He stated that he was susceptible to falling as a result of his right knee issues. However, no infections or other complication were noted. The Veteran stated that he did not use a cane or brace due to his right knee disability. He reported that flare-ups do not impact the function of his right knee and/or lower leg. Range of motion testing revealed the same results before and after repetitive use testing, with no pain throughout: flexion from 0 to 70 degrees, and full extension. There was no additional limitation in range of motion of the knee following repetitive use testing. The Veteran did have functional loss and/or functional impairment in the right knee as shown by the following factors: less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The Veteran did not have tenderness or pain to palpation for joint line or soft tissue of the right knee. Muscle strength testing revealed right knee flexion and extension as both 4/5. Joint stability testing was normal on all accounts. There was no evidence or history of recurrent patellar subluxation/dislocation. There were no other additional conditions noted. The examiner also noted that there was no objective evidence of redness, swelling, or pain to palpation during the examination. The Veteran stated that "the pain/stiffness was mostly associated with activity, as described above." The examiner opined that residuals of the Veteran's two prior knee replacement surgeries resulted in intermediate degrees of residual weakness, pain or limitation of motion. The examiner noted that there were no residual signs or symptoms attributable to the Veteran's right knee arthroscopy in October 2011. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms noted by the examiner. The Veteran was not found to use an assistive device as a normal mode of locomotion. Imaging studies were not performed during this examination. The examiner opined that the Veteran's knee condition did not impact his ability to work, and that his condition should not preclude him from light duty or sedentary work. The examiner stated that strenuous physical employment is limited given his right knee disability. He further reported that because the Veteran has "significant limitation with range of motion," he would likely not be able to participate in "excessive walking/standing, [or] heavy lifting/carrying due to his right knee condition." The Board has considered the Veteran's statements of record that a higher disability rating is warranted for his right knee disability. The Veteran does not meet the DC 5055 criteria for the next highest rating because he has not been shown to have chronic residuals consisting of severe painful motion or severe weakness in the affected extremity. The Board has considered whether a higher disability rating would be available under DC 5260 (limitation of flexion) and/or DC 5261 (limitation of extension). However, the Veteran's range-of-motion findings during the applicable period do not support a higher rating under either of these Diagnostic Codes. Likewise, a rating higher than 30 percent is unavailable under DC 5003 (degenerative arthritis), since the highest rating possible for right knee degenerative joint disease is 20 percent under the applicable rating criteria. Other Diagnostic Codes pertaining to the knee include DC 5256 (ankylosis), DC 5257 (recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (removal of semilunar cartilage), DC 5262 (impairment of tibia and fibula) and DC 5263 (genu recurvatum). However, these Diagnostic Codes are not applicable in this case because none of these conditions were found to be present on VA examination. The Veteran also cannot achieve a higher rating of 40 percent under DC 5262 because he has not been shown to have nonunion of his right tibia and fibula with loose motion that requires a brace. A separate compensable rating is not available for the Veteran's scar on his right knee either because VA examination findings confirmed that the scar was not painful and/or unstable, and that the total area of the scar did not exceed 39 square centimeters as required for a compensable rating under the Diagnostic Codes pertaining to scars (DCs 7800-05). Because DC 5055 contemplates the criteria for a higher rating based on functional loss, rating the Veteran's right knee disability under DC 5055 and under the DeLuca criteria would lead to double compensation. See 38 C.F.R. § 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07. Double compensation, or pyramiding, is prohibited under 38 C.F.R. § 4.14 (2014). Accordingly, a rating in excess of 30 percent based on functional loss (38 C.F.R. §§ 4.40, 4.45) is prohibited because these factors have already been compensated under DC 5055. 38 C.F.R. § 4.71a. The Court has indicated that in claims for increased ratings the Board must consider whether the record raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence does not indicate that the Veteran's right knee disability made him unable to secure or follow any substantially gainful occupation; therefore, the record does not raise the issue of unemployability. The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected right knee disability. Here, the schedular rating criteria used to rate the Veteran's service-connected right knee disability above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of the degrees of residual weakness, pain or limitation of motion following prosthetic replacement of the knee; thus, the demonstrated manifestations specifically associated with his service-connected right knee disability - namely pain, weakness, and limitation of motion after two prior total knee replacement surgeries - are contemplated by the provisions of the rating schedule. As the Veteran's disability picture for the entire appeal period is contemplated by the rating schedule, the assigned schedular evaluation is adequate. Additionally, he has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's right knee disability, and referral for consideration of an extra-schedular evaluation is not warranted. Based on the foregoing, the Board concludes that the Veteran's right knee disability has been no more than 30 percent disabling for all of the periods on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Duties to Notify and Assist VA has a 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). For an increased-compensation claim, the US Court of Appeals of Veterans Claims (the Court) has held that § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Such notice was provided in the letter sent to the Veteran in July 2008. Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). Here, service records have been obtained as have records of VA and private treatment. Based on the foregoing, the Board finds that VA has met its duty to assist with regard to records development. The Veteran was afforded VA examinations with respect to his claim in February 2010, February 2012, and January 2014. During those examinations, the VA examiners conducted physical examinations of the Veteran with diagnostic testing, were provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examinations that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met regarding the matter on appeal. 38 C.F.R. § 3.159(c)(4); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). All necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements, and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As noted in the Introduction, the Board previously remanded this claim in November 2013. The Board instructed the AOJ to order an updated VA examination for the Veteran, ask the Veteran to submit updated private treatment records, and to then readjudicate the claim on appeal. Since that time, VA issued a supplemental statement of the case that considered the additional, new evidence. However, the Veteran did not respond to the AOJ's request. VA's duty to assist in developing the facts and evidence pertinent to a veteran's claim is not a one-way street, and it is the responsibility of veterans to cooperate with VA with regard to development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). This is especially true in matters relating to private records, to which VA has no access or knowledge without the Veteran's cooperation. Given the Veteran's actions, and VA's offers to assist him in developing the claim, the Board finds that VA has no additional duty with regard to request for private treatment records concerning his right knee disability. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). As a result, the Board finds substantial compliance with its previous remand instructions, and has properly continued with the foregoing decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). ORDER Entitlement to a rating in excess of 30 percent for right total knee arthroplasty, to include restoration of a 60 percent disability rating, from May 1, 2008, to October 30, 2011, and from December 1, 2011, thereafter, is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs