Citation Nr: 1751537 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-11 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a rating in excess of 30 percent for service-connected residuals of a left knee replacement. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Connor, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to February 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the undersigned Veterans Law Judge during a March 2017 video hearing conference. A transcript of that hearing is associated with the claims file. This case was most recently before the Board in May 2017 when it was remanded for additional development. It has returned for adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for a dental issue has been raised by the record in an October 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). FINDINGS OF FACT 1. For the entire period on appeal, the residuals of the Veteran's left knee replacement include intermediate degrees of residual weakness, pain, flexion to 110 degrees, and extension to 10 degrees. 2. In affording the Veteran the benefit of the doubt, the Veteran's left knee disability resulted in slight instability for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 30 percent for a left knee status post total knee replacement have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055 (2017). 2. The criteria for a separate 10 percent disability rating have been met for instability of the left knee. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The matter was Remanded in May 2017 for the purpose of affording the Veteran an updated VA examination. The examination was completed in June 2017. Thus there has been substantial compliance with the Board's remand directives and no further development is required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, 287 F.3d 1377 (Fed. Cir. 2002) (holding that there was no Stegall violation when there has been substantial compliance with the Board's remand order). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). By way of history, service connection for a left knee injury was granted in June 1966. A 10 percent rating was assigned. Following a total knee replacement, which resulted in the assignment of a 100 percent rating from April 2006 through June 2007, the Veteran was assigned a 30 percent rating for his left knee disability under Diagnostic Code 5055. Diagnostic Code 5055, which governs knee replacement (prosthesis), provides for a 100 percent rating for one year after implantation of the prosthesis. The 100 percent rating for one year following implantation of the prosthesis will commence after the initial grant of the one month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. Following the one year period, the residuals of a knee replacement are rated 60 percent rating where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion, are to be rated by analogy to Codes 5256, 5261, or 5262. The minimum rating for a prosthetic knee replacement is 30 percent. 38 C.F.R. § 4.71a (2017). Diagnostic Codes 5256 applies to ankylosis of the knee, and provides a 40 percent rating for extremely unfavorable ankylosis in flexion between 10 degrees and 20 degrees. A 50 percent rating is assigned for extremely unfavorable ankylosis of the knee in flexion between 20 degrees and 45 degrees; and, a maximum 60 percent rating is assigned for extremely unfavorable ankylosis of the knee in flexion at an angle of 45 degrees or more. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight subluxation or lateral instability, a 20 percent rating is warranted for moderate subluxation or lateral instability, and a 30 percent rating is warranted for severe subluxation or lateral instability. Diagnostic Code 5260 provides a 30 percent rating where knee flexion is limited to 15 degrees; 20 percent where limited to 30 degrees; 10 percent where limited to 45 degrees; and 0 percent where limited to 60 degrees. Diagnostic Code 5261 provides a 50 percent rating where knee extension is limited to 45 degrees; 40 percent where limited to 30 degrees; 30 percent where limited to 20 degrees; 20 percent where limited to 15 degrees; 10 percent where limited to 10 degrees; and 0 percent where limited to 5 degrees. Diagnostic Code 5262 provides a 40 percent rating for impairment of the tibia and fibula with nonunion, loose motion, and requiring a brace; 30 percent with malunion and marked knee or ankle disability; 20 percent with malunion and moderate knee or ankle disability; and 10 percent with malunion and slight knee or ankle disability. Under certain circumstances, a knee disability may receive separate ratings based on evidence showing limitation of motion (Diagnostic Codes 5256, 5260, and 5261) or instability (Code 5257, 5262, and 5263). See VAOPGCPREC 9- 2004 (September 17, 2004) and VAOPGCPREC 23-97 (July 1, 1997). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (2017) (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2017). Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2017). The Veteran was first examined in conjunction with his current claim in December 2010. At that time, he complained of progressively worsening knee pain since his April 2006 total knee replacement. He indicated that he was using one or two tablets of Tylenol once a day and Vicodin once every two weeks with a fair response. The Veteran reported instability and pain but denied deformity, giving way, and weakness. The Veteran noted moderate, weekly flare-ups of joint disease that last hours. He reported that his pain is better with rest and pain medications. The Veteran's impression of the extent of effects of the flares on limitation of motion was that it was decreased by 70 to 90 percent. The Veteran was able to stand for 15 to 30 minutes and walk more than a quarter of a mile, but less than 1 mile. He intermittently, but frequently, used a knee brace for ambulation. On examination, the Veteran had an antalgic gait and evidence of an abnormal weight-bearing based on his shoe wear pattern. There was no crepitation, mass behind the knee, clicks or snaps, grinding, instability, patellar abnormality, meniscus abnormality, abnormal tendons on bursae, or other knee abnormalities noted on examination. Additionally, weakness was not observed. Range of motion measurements with active motion were from 10 degrees of extension to 110 degrees of flexion. There was objective evidence of pain following repetitive motion but no joint ankylosis. The legs were equal in measurement. December 2010 imaging of the left knee showed osteoporosis but no evidence of acute displaced fracture-dislocation. Soft tissue appeared normal. The Veteran was retired at that time, eligible by age or duration of work. The examiner diagnosed severe post traumatic/degenerative arthritis of the left knee total knee arthroplasty in 2006. There were significant effects on his usual occupation due to pain and at most mild effects on his usual daily activities. In a January 2011 statement, the Veteran reported falling due to his left knee disability. In an October 2014 correspondence, the Veteran reported that his left knee is weak and it "buckles" and "clicks" with side to side movement. He stated that he feels that the ligaments on the inside of his knee are not stable and he had fallen due to his knee "caving in". Treatment records dated in November 2016 note that the Veteran uses a cane and left knee brace at times. In March 2017, he was fitted for bilateral knee braces. During the March 2017 hearing, the Veteran reported constant pain in his left knee that has worsened "over the years" through activities like "playing with the kids". The Veteran reported that the pain interrupts his sleep and that he is prescribed pain medication to take up to 4 times a day. He said that his VA provider recommended physical therapy and walking to help with his left knee pain and that he was able to walk 4 to 5 blocks before it would become painful. The Veteran stated that he was able to do chores around the house, mow the lawn, and take care of the yard, though it would take him a while. He further indicated that he had a history of falling due to the feeling that his left knee was "caving". He reported feelings of weakness in his left knee on uneven surfaces. The Veteran's knees were next examined in June 2017. At that time, he indicated that he had been in constant pain for the previous 4 to 5 years. He said the pain interfered with his sleep and that his left knee would swell occasionally. He was prescribed pain medication but it made him drowsy. Prolonged walking hurts but he tries to go walking 5 days out of 7. After 1 block of walking, he has increased pain. He uses the railings for steps and both knee braces when he goes to the grocery store. He feels like the left upper and lower knee separated. He denied any lock up but stated that his left knee has become stiff on a couple of occasions. He said his left knee will give out when he steps on an uneven surface. He reported pain from his left thigh to his mid tibia in addition to medial knee pain. He reported use of a cane and left knee brace at times. His pain was aggravated with walking short/long distances and ambulating stairs. He described the pain as a constant achy pain. Oral intake of acetaminophen is not helpful but the Veteran stated he is unable to take NSAIDs due to the deleterious effect on kidneys. He stated that he feels like the left knee ligaments are loose. April 2016 x-rays showed no acute fracture, dislocation, or subluxation. His prosthesis was stable. Range of motion testing was from 0 degrees of extension to 120 degrees of flexion for both knees. Pain was noted on flexion during the examination but it did not result in or cause functional loss. There was evidence of pain with weight-bearing and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the anterior knee. There was no objective evidence of crepitus and the Veteran was able to perform repetitive use testing with no additional functional loss. However, the examiner noted range of motion was from 0 degrees of extension to 110 degrees of flexion for both knees after repetition due to pain. On the left, muscle strength testing was normal and there was no evidence of muscle atrophy. There was also no ankylosis noted and joint stability tests found no evidence joint instability. There was no evidence of a meniscus condition. The examiner diagnosed the Veteran with left knee intermediate degrees of residual weakness, pain, or limitation of motion. The Veteran had a well healed anterior left knee surgical scar that was 6 inches long but non tender and there was no evidence that it was unstable. The Veteran reported occasional use of a knee brace and regular use of a cane for ambulation. The examiner also noted evidence of pain on passive range of motion testing and pain when the joint is used in non-weight-bearing. With regard to the left knee, the evidence of record does not establish that this disability warrants more than a 30 percent disability rating under Diagnostic Code 5055. The medical evidence does not demonstrate severe painful motion or weakness. The Veteran even reported going for walks most days of the week. Reference is also made to the June 2017 VA examination that noted there was no additional functional loss, weakness, or loss of motion due to pain. Muscle strength throughout the appeal period was normal and there was no indication of atrophy. Accordingly, his intermediate degrees of residuals are to be rated under the diagnostic codes relating to knee disabilities. See 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2017). Based on the evidence of record, the Board finds that an additional 10 percent rating under Diagnostic Code 5261 is warranted for limitation of extension to 10 degrees, as evidenced by the December 2010 VA examination. There is no evidence of extension limited to any worse than 10 degrees. Indeed, the June 2017 VA examiner noted extension was to 0 degrees and found pain only on flexion, even noting that the pain did not result in or cause functional loss. The Board notes that the regulations do not define terms such as intermediate or severe. However, the Disability Benefits Questionnaire (DBQ) completed by the 2017 examiner specified that the Veteran's symptoms were intermediate as opposed to severe. The DBQ was completed by a medical professional who formulated that conclusion based on a physical examination, review of the record, and interview of the Veteran. The Board has no basis to contradict the conclusion made by the examiner. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Under Diagnostic Code 5055, the left knee disability may be considered by analogy under Diagnostic Codes 5256, 5261, or 5262. With respect to ratings based on limitation of motion, the examinations reflect flexion limited to 110 degrees, at worst. Extension was no worse than 10 degrees. Even when taking into account factors such as pain, weakness, weakened movement, excess fatigability, and incoordination, the Veteran's motion far exceeds the levels required for compensable evaluations in excess of the 30 percent currently assigned. Increased ratings are not available under Diagnostic Codes 5260 or 5261. Notwithstanding the foregoing, the Board finds that the Veteran's statements and treatment records are sufficient to indicate slight instability throughout the appeal period. The Veteran regularly noted feeling like his knee was "caving in" and reported falling on multiple occasions. During the March 2017 hearing, the Veteran noted he is especially cautious on uneven surfaces and when climbing stairs due to a feeling of instability. He is found competent and credible to report such. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). His treatment records document use of knee braces and a cane for ambulation. Despite the examiners' reports showing normal results during instability testing, the Board will afford the Veteran the benefit of the doubt and award a separate 10 percent rating for slight instability under Diagnostic Code 5257. However, there is no evidence of moderate instability during the appeal period. Such is evidenced by the VA examination findings and the absence of atrophy or evidence of a meniscus disability. An increased rating is not warranted under the other relevant diagnostic codes pertaining to disabilities of the knee and leg. There is also no evidence of ankylosis of the knee, cartilage disability (knee has been replaced so that is a moot question), nonunion or malunion of the tibia and fibula, or genu recurvatum. The assigned of an increased or separate compensable rating under any additional diagnostic codes is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258-60, 5262-63 (2017). The Board has not overlooked the fact that the Veteran experiences pain. However, pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, the Board recognizes the Veteran's assertion that during weekly flare-ups, his range of motion is decreased by 70 to 90 percent. However, such was addressed in the aforementioned examinations, which evaluated range of motion on repetitive use and in active and passive motion. The examiners found that, at worst, the Veteran's motion was restricted to 10 degrees of extension and 110 degrees of flexion. The Veteran's reports of near-daily walks, playing with children, and doing yardwork and household chores also weigh against a finding of a more severe disability, including as a result of functional loss limiting the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. The Board finds the VA examination reports to be the most probative evidence of the extent of the Veteran's left knee disability. The Board also notes that there is no indication in the medical evidence of record that the Veteran's left knee symptomatology warranted other than the currently assigned disability ratings throughout the appeal period. The assignment of staged ratings is not warranted. See Hart, supra. The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2017); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With regard to the Veteran's service-connected left knee disability, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. His complaints of weakness and limited range of motion due to pain are adequately contemplated by the rating schedule. 38 C.F.R. §§ 4.40 and 4.45 adequately contemplate any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint. The Board has also considered all other diagnostic codes for the knee to ensure all symptoms are adequately evaluated. Notably, this has allowed the Board to grant separate 10 percent evaluations throughout the entire appeals period for the Veteran's left knee decreased extension and slight instability. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected left knee disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2017). Referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. ORDER Entitlement to a disability rating in excess of 30 percent for residuals of a left knee replacement is denied. Entitlement to a separate disability rating of 10 percent for instability of the left knee is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs