Citation Nr: 1751525 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-35 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial compensable rating for degenerative joint disease of the right knee prior to February 3, 2017. 2. Entitlement to an increased rating for status post total left knee replacement with scar, evaluated as evaluated as 30 percent disabling from April 1, 2014. 3. Entitlement to an increased rating for right shoulder tendonitis, rotator cuff injury with scar, currently evaluated as 10 percent disabling prior to March 18, 2014, and as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The appeal was remanded by the Board to the Agency of Original Jurisdiction (AOJ) in August 2016. As the sufficient efforts were made to obtain updated medical records, and medical examination was obtained, the Board finds the directives have been substantially complied with, and the matter again is before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Prior to February 3, 2017, degenerative joint disease of the right knee was manifested by painful motion. 2. From April 1, 2014, status post total left knee replacement with scar is manifested by flexion not more limited than 90 degrees with a nonpainful and not tender linear surgical scar; there is no ankylosis, no nonunion of the tibia and fibula with loose motion, requiring brace, and no extension limited to 30 degrees or more, nor is there severe painful motion or weakness in the left knee. 3. For all times relevant to the claim, the Veteran's right shoulder disability, at worst, is manifested by pain that functionally limits right arm motion to shoulder level; arm motion limited to midway between side and shoulder level is not demonstrated. CONCLUSIONS OF LAW 1. Prior to February 3, 2017, the criteria for a rating of 10 percent, but no higher, for degenerative joint disease of the right knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2016). 2. From April 1, 2014, the criteria for a rating in excess of 30 percent for status post total left knee replacement with scar have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5055 (2016). 3. The criteria for an evaluation of 20 percent for service-connected right shoulder disability have been met prior to March 18, 2014; throughout the appeal period, the criteria for a rating in excess of 20 percent have not been met or approximated. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.59, 4.69, 4.71a, Diagnostic Codes 5019, 5201 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103 (a), 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The appeal arises from the Veteran's disagreement with the initial evaluation assigned following the grant of service connection as to the right knee. Once service connection is granted, the claim is substantiated, and additional notice is not required. As to the remaining claims for increased rating, proper notice was provided in April 2013. As to VA's duty to assist, the Veteran's service treatment records, VA medical treatment records, and private medical treatment records have been obtained. VA examinations were conducted in May 2013, March 2014 and November 2016; these examinations are adequate for rating purposes, as the examination reports reflect that the examiners considered the Veteran's reported symptoms and limitations, performed thorough clinical evaluations and rendered findings applicable to the relevant rating criteria. Moreover, the Veteran has not reported, and the evidence does not suggest, that either his left knee, right knee (prior to surgery) or right shoulder disability had increased in severity, for the pertinent periods on appeal, since he was last afforded a VA examination. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Increased Ratings 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 resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his 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. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are 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. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. The Board has considered the entire record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. III. Knees 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 VAOPGCPREC 9-2004, separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (September 17, 2004). Because ratings may be separately assigned for limitation of flexion and limitation of extension, the Board will consider both Diagnostic Codes. Degenerative or traumatic 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, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code 5257 pertains to other impairment of the knee involving recurrent subluxation or lateral instability and provides a 10 percent rating for slight impairment, 20 percent rating for moderate impairment, and 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The VA General Counsel has issued a precedential opinion holding that separate ratings may be assigned for arthritis with limitation of motion under Diagnostic Code 5260 or 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). DC 5055 is the rating criteria for the prosthetic replacement of a knee joint. Under this code, for one year following implantation, the knee joint warrants an evaluation of 100 percent. 38 C.F.R. § 4.71. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent evaluation is warranted. Id. Where there are intermediate degrees of residual weakness, pain, or limitation of motion, Diagnostic Code 5055 instructs that they are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum evaluation for the residuals of the prosthetic replacement of a knee joint is 30 percent. DC 5256 provides that unfavorable ankylosis in flexion between 10 and 20 degrees warrants a 40 percent rating, while favorable angle in full extension, or in slight flexion between 0 and 10 degrees, warrants a 30 percent rating. DC 5262 provides that nonunion of the tibia and fibula with loose motion requiring brace warrants a 40 percent rating. Right Knee The Veteran's right knee disability has been rated pursuant to various Diagnostic Codes (DCs) under 38 C.F.R. § 4.71a. Service connection was granted and a noncompensable rating was assigned under DCs 5257-5003 in the August 2013 rating decision on appeal. Effective February 3, 2017, a 100 rating is in effect under DC 5055, with the rating initially representing a period of convalescence for right knee replacement surgery an additional 12-months for the period from April 1, 2017, through April 1, 2018, following implantation of the prosthesis. Thereafter, a 30 percent rating is assigned effective April 1, 2018, representing the minimum schedular evaluation assigned following prosthetic replacement of the knee joint. Thus, on appeal is the period prior to February 3, 2017. As to the period from April 1, 2018, the Board will not address ratings at a future time. After considering the above constellation of rules governing the rating of the knee, the Board finds that a 10 percent rating, and no higher, is warranted for the right knee prior to February 3, 2017. First, slight, or more, recurrent subluxation or lateral instability is not shown at any time, and thus a separated 10 percent rating under DC 5257 is not warranted. The November 2016, March 2014 and May 2013 VA examination reports reflect joint stability tests for the right knee were normal, with no history of recurrent subluxation or lateral instability. A review of the treatment records also fails to disclose any recurrent subluxation or lateral instability. Second, a compensable degree of limited flexion or extension has not been objectively demonstrated in any of the three VA examinations. All of the reports reflect both flexion in excess of 45 degrees and extension not limited to 10 degrees, even on repetitive testing. Flexion to 110 and extension to 0 is noted, along with no flare-ups, in the November 2016 VA examination report. Additionally, in a January 2017 Franciscan Medical Group report, the right knee flexed to 120 degrees and extended to -2 degrees with no pain. A review of the other treatment records also fails to disclose any greater limitation. Moreover, the record contains no indiction of dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint, or removal of semilunar cartilage, symptomatic, to support an increased rating pursuant to DCs 5258 or 5259. See November 2016 VA examination report. Nor is there any knee ankylosis to support an increased rating pursuant to DC 5256. Nonetheless, the record is replete with reference to the Veteran's assertions of severe painful motion associated with the right knee throughout the appeal period, culminating with the total knee replacement in February 2017. VA treatment records dated from April 2012 show that the Veteran was seeking treatment for right knee pain, which he reported was increasing and was aggravated by his extensive walking during his work as a mail man. Examination in November 2016 showed objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue under knee cap due to arthritis. The examiner addressed the requirements of 38 C.F.R. § 4.59 regarding the assessment of painful motion. A Franciscan Medical Group record dated in August 2016 shows complaints of fairly constant dull right knee pain accompanied with sharp pain with activity. A history of bilateral knee arthritis was noted, as well as the left total knee arthroplasty in 2013 with good result. The Veteran reported severe subjective right knee symptoms. Pain was now waking him up at night and restricting his walking. He could no longer get the knee straight. In January 2017, he was ready to proceed with a right total knee replacement. Examination revealed tenderness and the assessment after X-ray was severe medial and patellofemoral arthritis right knee, and his knee replacement was scheduled following this evaluation. The Board finds that the Veteran's complaints of right knee painful motion are consistent throughout the period on appeal, are adequately documented and support a 10 percent rating based on painful motion. While it is acknowledged that the examination reports note range of motion accomplished, clinically, with no pain, this finding is less relevant than the recording of the Veteran's extensive, consistent complaints of pain and symptoms with daily functioning. The Board cannot reasonably disassociate his long-standing complaints of right knee pain with the arthritis that ultimately required a total knee replacement in February 2017. Recent cases from the Court reflect that a 10 percent rating may be warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities rated under diagnostic codes containing a 10 percent rating, and the criteria for such a rating can be satisfied with lay and other non-medical evidence. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). The Board finds that these two cases support a 10 percent rating, and no higher, based on painful right knee motion in this claim. However, for the reasons set forth above, there is no basis to grant a rating in excess of 10 percent for the right knee degenerative joint disease prior to February 3, 2017. Hart v. Mansfield, 21 Vet. App. 505 (2007). Left Knee Service connection for the left knee disability was initially granted in a February 1992 rating decision with a 10 percent rating assigned under DCs 5010-5003. He filed the instant claim for increase in March 2012, and underwent left total knee replacement in February 2013. In the August 2013 rating decision on appeal, he was rated 100 percent disabled from February 22, 2013, and as 30 percent disabled as of April 1, 2014, under DC 5055. He seeks a 60 percent rating for the period from April 1, 2014, based on severe painful motion. See September 2017 Appellate Brief. However, the preponderance of the evidence disability against this claim as explained below. At the outset, the Bord notes that the record does not suggest that the left knee surgical scar warrants a separate compensable rating, as it is asymptomatic, not painful or tender on objective demonstration, and is of minimal size. See 38 C.F.R. § 4.118, DC 7801-7804 (2008). VA examination in March 2014 reflects left knee had flexion to 90 degrees with pain, and extension to 0 degrees. Joint stability testing was normal, and no other objective symptoms were noted. The surgical scar was non painful and not tender, measuring a linear 19 x .1 cm. Again there was no ankylosis or non-union of the tibia and fibula with loose motion, requiring brace; or, extension limited to 30 degrees or more. VA examination in November 2016 reflects left knee had flexion to 90 degrees with pain, and extension to 0 degrees. There was no reduction on repetitive testing and flare-ups were not noted. Painful kneeling was reported. Joint stability testing was normal, and no other objective symptoms were noted. The surgical scar was non painful and stable, measuring a linear 16 x .2 cm. Again there was no ankylosis or non-union of the tibia and fibula with loose motion, requiring brace; or, extension limited to 30 degrees or more. Thus, the Veteran does not meet or approximate the criteria for a rating in between 30 and 60 percent. There is evidence of no ankylosis, no nonunion of the tibia and fibula with loose motion, requiring brace, and no extension limited to 30 degrees. The treatment record is consistent with the examination record set forth above as to the pertinent rating criteria. Furthermore the preponderance of the evidence is against a finding of chronic residuals consisting of severe painful motion or weakness in the affected extremity to support a 60 percent rating under DC 5055. The record simply does not contain sufficient contentions or objective indicators suggestive of such a degree of severity. Here, the Veteran has noted pain with kneeling in the 2016 examination report, and pain while walking was reported in the 2012 treatment note. However, he had the total knee replacement in the intervening time, February 2013, and the period on appeal is from April 1, 2014. It was noted in the 2016-2017 Franciscan treatment notes that he had a good result from the left knee replacement. The Board finds that the record does not demonstrate severe painful motion or weakness in the left knee at any time since April 1, 2014. In conclusion, for the reasons set forth above, a rating in excess of 30 percent for the left knee replacement with scar from April 1, 2014. Hart v. Mansfield, 21 Vet. App. 505 (2007). IV. Right Shoulder Service connection for the right shoulder disability was initially granted in a February 1992 rating decision with a 10 percent rating assigned under DC 5304. He filed the instant claim for increase in March 2012, and in August 2013, a temporary total rating was assigned following surgery, effective from June 2012, with a 10 percent rating assigned from August 2012. In an April 2014 rating decision, a 20 percent rating was granted effective March 18, 2014, with the condition now rated under DCs 5201-5019. The Veteran seeks a minimum 20 percent rating based on painful shoulder motion under Sowers, supra. See September 2017 Appellate Brief. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Code 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203). Here, the RO added DC 5019 (bursitis) after the hyphen, which states that bursitis is to be rated on limitation of motion. Diagnostic Code 5201 is used to evaluate injuries resulting in limited motion of the arm. A 20 percent rating is warranted for limitation of motion of either arm at shoulder level, or midway between side and shoulder level of the minor arm. A 30 percent rating is warranted for motion limited to midway between side and shoulder level for the major arm, or to 25 degrees from the side for the minor arm. A 40 percent rating is the maximum schedular rating for limitation of motion of the arm, and is warranted for limitation of motion to 25 degrees from the side for the major arm. 38 C.F.R. § 4.71a, DC 5201. The terms "major" and "minor" are used in the rating criteria to refer to the dominant or non-dominant upper extremity. See 38 C.F.R. § 4.69 (2016). The evidence demonstrates that the Veteran's right arm is his dominant upper extremity. See November 2016 VA Examination. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating of 20 percent is warranted for the Veteran's right shoulder disability for the period prior to March 18, 2014. However, as explained below, the preponderance of the evidence is against right shoulder disability being rated in excess of 20 percent at any time during the claim period. During a May 2013 VA examination, the Veteran complained of flare-ups which were describe as affecting lifting and reaching. Flexion was to 120 degrees with pain, abduction to 100 degrees with pain. Internal rotation ended at 70 degrees, and external rotation ended at 60 degrees. Repetitive testing revealed the same results. The examiner noted functional limitations of less movement than normal, and pain on movement. Thus, the Veteran did not meet the DC 5201 motion limitation requirements to reach a disability rating of 20 percent or higher. VA examination in March 2014 revealed the diagnosis of right shoulder tendonitis status post rotator cuff injury. Right shoulder flexion was to 80 degrees with pain, and abduction to 70 degrees with pain. Repetitive testing showed the same results. External rotation ended at 40 degrees with pain, and internal rotation ended at 80 degrees with painful motion. The examiner noted painful movement in the right shoulder with localized tenderness and pain in the shoulder joint. Muscle strength was normal. The surgical scar on the right shoulder measuring 9 x 1cm was noted as neither painful nor unstable. X-rays showed mild degenerative joint disease of the acromioclavicular joint. VA examination in November 2016 reflects the Veteran's ongoing complaints of pain and difficulty using his right arm at an overhead level for more than a minute at a time. Right shoulder flexion was measured to 180 degrees, and abduction to 180 degrees. Repetitive motion testing showed the same results. The examiner noted that there was less weight bearing ability only overhead. External rotation ended at 90 degrees with pain, and internal rotation ended at 90 degrees with painful motion. He reported no flare-ups that impact the function of the shoulder or arm. The Veteran denied additional loss of motion, and just reported the inability to hold his right arm overhead more than a minute or two at a time. As to the period prior to March 18, 2014, the Veteran's complaints of right shoulder painful motion are consistent and adequately documented, and in this case uniquely support a 20 percent rating based on painful motion. See 38 C.F.R. § 4.59, Sowers and Petitti, supra. The 2013 examination report notes range of motion accomplished with pain, which is consistent throughout both the clinical and treatment record. The Board cannot reasonably disassociate his long-standing complaints of right shoulder pain and actual functional limitation with the arthritis and bursitis in that shoulder. The Board finds that these two cases support a 20 percent rating, and no higher, based on painful right shoulder motion in this claim prior to March 18, 2014. However, there is no basis to grant a rating in excess of 20 percent for the right shoulder at any time. Hart v. Mansfield, 21 Vet. App. 505 (2007). The most recent examination makes clear that he does not meet the range of motion restrictions required for a higher rating, nor does he demonstrate any other criteria for a higher rating. The Veteran did not show sufficient evidence of the following: (1) recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements (DC 5202); or (2) malunion of the humerus with marked deformity (DC 5202); or, ankylosis (DC 5200). Additionally, the surgical scar remains asymptomatic, nonpainful and not tender, and as such remains noncompensable. A review of the treatment records also fails to disclose any greater limitation that meet or approximate these criteria. ORDER A 10 percent rating, and no higher, is warranted for degenerative joint disease of the right knee prior to February 3, 2017, subject to controlling regulations governing the payment of monetary awards. A rating in excess of 30 percent for the left knee replacement with scar from April 1, 2014, is denied. A 20 percent rating for the Veteran's right shoulder tendonitis, rotator cuff injury with scar is granted for the period prior to March 18, 2014 subject to controlling regulations governing the payment of monetary awards; a rating in excess of 20 percent is denied at all times relevant to the claim. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs