Citation Nr: 1642742 Decision Date: 11/07/16 Archive Date: 11/18/16 DOCKET NO. 11-15 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 30 percent for a post total knee replacement (TKR) left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1962 to March 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for the Veteran's left knee disability, rated 30 percent. In May 2015, a Travel Board hearing was held before the undersigned; a transcript is in the record. In August 2015, the Board remanded this matter for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's post TKR left knee disability is manifested by no more than intermediate weakness and pain; severe painful motion or weakness is not shown; throughout flexion has been to at least 90 degrees and extension has been full. CONCLUSION OF LAW A rating in excess of 30 percent for post TKR left knee disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5055 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The appeal in this matter is from the initial rating assigned with the award of service connection. The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). A statement of the case properly provided notice on the downstream issue of entitlement to an increased initial rating. It is not alleged that notice was less than adequate. The Veteran's VA and private medical records have been secured, and he was afforded adequate VA examinations to assess the severity of his status post left TKR. The appellant has not identified any pertinent evidence that remains outstanding. The Board notes that the Veteran's representative requested a remand to obtain the Veteran's treatment records since 2013. In August 2015, VA sent the Veteran a letter asking him to identify all providers who had treated him for his left knee disability since 2013. In response, he submitted records from 2007 and 2013. The 2013 records did not mention the left knee. VA's duty to assist is met. Factual Background, Legal Criteria and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). On January 2010 VA examination, the Veteran stated he had achiness in his left knee daily. Examination found that range of motion was from 0 to 95 degrees with pain. He was able to perform repetitive motions times three with the same findings. There was no additional limitation of motion due to pain, fatigue, weakness or incoordination. There was no significant history of flare-ups. The diagnosis was meniscal tear leading to arthritis and knee replacement. Private medical records show that in August 2010, the Veteran stated he had no pain in the left knee. There was good range of motion in the knee. The assessment was that the Veteran was doing extremely well with the left knee. When he was seen for right knee pain in September 2013, it was noted he was doing "excellent" with respect to the left knee. Left knee range of motion was from 0 to 120 degrees. The knee was stable to varus and valgus stress. In July 2014, R.P.E., a family friend, stated that the Veteran had left knee pain. On October 2014 VA examination, the Veteran reported intermittent left knee pain. He stated his pain was better following the knee replacement surgery. He reported flare-ups about twice a week, with pain of 8/10. Examination found that range of motion was from 0 to 110 degrees, with no objective evidence of pain. He was able to perform repetitive use testing with no change in the range of motion. There was no functional impairment of the left leg. No tenderness or pain to palpation was noted. Muscle strength testing was 5/5. The examiner could not perform joint stability tests. It was stated the Veteran had no residuals of the left knee TKR. He did not use an assistive device. The examiner stated the left knee disability did not impact on the Veteran's ability to work. It was noted that pain could additionally limit functional ability during flare-ups/repetitive use. She also indicated that it was not possible to express in exact degrees the range of motion loss during flare-ups without resorting to mere speculation. The diagnosis was status post left knee joint replacement. At the May 2015 Travel Board hearing the Veteran testified that his left leg is weak. He stated that he is able to stand for only 15 to 20 minutes before the leg becomes weak and he has to rest. His wife, who said she is a registered nurse, testified that his knee condition has increased in severity. On March 2016 VA examination, the Veteran stated that his chronic left knee pain was progressing, and was worse with walking and standing. He said that flare-ups caused him to lie down. Examination found range of motion from 0 to 100 degrees, with pain; there was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain to palpation. No evidence of crepitus was noted. He was able to perform repetitive use testing times three, after which range of motion was from 0 to 90 degrees. The examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. It was noted that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time and with flare-ups due to pain. Muscle strength testing was 5/5 on flexion and 4/5 on extension. There was muscle atrophy of one centimeter located six centimeters above the knee. Motor strength testing was 4+/5. The Veteran did not have ankylosis. There was no history of recurrent subluxation, lateral instability or recurrent effusion. There was no evidence of joint instability. The examiner indicated that the residuals of the left TKR resulted in intermediate degrees of residual weakness, pain or limitation of motion. It was also noted that the Veteran regularly used a cane for ambulation. The diagnosis was status post left TKR. The examiner stated that the impact of the left knee disability on the Veteran's ability to work was that he had pain with prolonged standing or walking. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant, 38 C.F.R. § 4.3. Functional impairment is to be assessed on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal is from the initial rating assigned with an award of service connection, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). A 100 percent evaluation is warranted for knee replacement (prosthesis) for 1 year following implantation of prosthesis. A 60 percent evaluation is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, rate by analogy to diagnostic codes 5256, 5261, or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a, Code 5055. A 30 percent rating is to be assigned when flexion of the leg is limited to 15 degrees, a 20 percent rating when flexion is limited to 30 degrees, and a 10 percent rating when flexion is limited to 45 degrees,. 38 C.F.R. § 4.71a, Code 5260. A 50 percent rating is to be assigned when extension of the leg is limited at 45 degrees; a 40 percent rating when extension is limited at 30 degrees; a 30 percent rating when extension is limited at 20 degrees; a 20 percent rating when extension is limited at 15 degrees; a 10 percent rating when extension is limited at 10 degrees; and a 0 percent rating when extension is limited at 5 degrees. 38 C.F.R. § 4.71a, Code 5261. Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. The evidence of record does not show that the Veteran has had severe painful motion or weakness in the left knee. The Board acknowledges that when the findings on the January 2010, October 2014 and March 2016 VA examinations are compared, they show that the residuals of the left TKR are worsening. The January 2010 VA examination found limitation of motion with pain, but the Veteran reported no significant history of flare-ups. He reported twice weekly flare-ups on the October 2014 examination, but the range of motion actually increased when compared to the previous examination, and there was no evidence of pain. As is noted above, the March 2016 VA examination again found that range of motion was restricted and painful. The examiner, however, found that the residuals were productive of intermediate residual weakness, pain and limitation of motion. Muscle and motor strength testing were only slightly (4-4+/5) diminished. Since the residuals are not shown to at any time have been more than intermediate, a higher rating under Code 5055 is not warranted. The analysis turns to consideration of Codes 5260 and 5261 to determine whether an intermediate rating between 30 and 60 percent may be warranted. Range of motion of the Veteran's left knee was measured on the three VA examinations. Extension was normal at all times. Flexion ranged from 90 (following repetitive use testing) to 110 degrees. The limitations of motion shown are of insufficient degree to warrant a compensable rating under either Code 6260 or Code 6261. As the Veteran has a functioning prosthesis with less than compensably limited motion, the left knee is not ankylosed and rating under Code 5256 is not warranted. Consequently, an intermediate (between 30 and 60 percent) rating based on a combination of ratings under separate diagnostic codes for related pathology and functional impairment is not warranted. The symptoms and related functional impairment the Veteran describes in his own reports do not meet the schedular criteria for a rating in excess of 30 percent for the post TKR left knee disability. Accordingly, the Board finds that a schedular rating in excess of 30 percent is not warranted. The Board has considered whether referral of this matter for consideration of an extraschedular rating is warranted, but finds that all identified symptoms and impairment associated with the Veteran's left knee disability (essentially pain and functional limitations increasing with use, but not yet to a severe stage) are encompassed by the criteria for the schedular ratings assigned. He has not alleged any manifestations or functional impairment of function not encompassed by the schedular criteria. Therefore, those criteria are not inadequate, and referral for consideration of an extraschedular rating is not necessary. Thun v. Peake, 22 Vet. App. 111 (2008). The record does not suggest, nor has the Veteran alleged, that his left knee disability prevents him from being gainfully employed; there is no indication in the record that by virtue of this disability he is rendered incapable of gainful employment. While the March 2016 VA examiner found that the left knee disability would result in pain with prolonged standing or walking, there is no indication it would impact significantly on sedentary types of work. Accordingly, the matter of entitlement to a TDIU rating is not raised in the context of the instant claim for increase. ORDER A rating in excess of 30 percent for post-TKR left knee disability is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs