Citation Nr: 1751600 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 11-02 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a service connected left knee disability. 2. Entitlement to a disability evaluation in excess of 30 percent for degenerative joint disease of the left knee, status post total knee replacement with residual scar. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1958 to August 1961. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2010 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned Veterans' Law Judge at an April 2016 videoconference hearing, and a transcript of this hearing is of record. In October 2016, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain additional records, and afford the Veteran a VA medical examination. The action specified in the October 2016 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 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). FINDINGS OF FACT 1. The Veteran was treated for depressive disorder due to his service connected medical problems during the period on appeal. 2. During the period on appeal, the residuals of the Veteran's left total knee replacement were not manifested by severe painful motion or weakness, extension limited to 30 degrees or greater, ankylosis, loose motion, or recurrent subluxation, but were characterized by instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for depressive disorder have been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). 2. The criteria for a disability evaluation in excess of 30 percent for degenerative joint disease of the left knee, status-post total knee replacement with residual scar have not been met prior to February 4, 2014. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2016). 3. The criteria for entitlement to a separate 10 percent disability evaluation based on slight instability of the left knee under Diagnostic Code 5257 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, 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, 1380-81 (Fed. Cir. 2000). Therefore, 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 these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). In this case, the Veteran is seeking entitlement to service connection for depression, to include a secondary to his service connected disabilities. Records from Dr. P.S. dated September 2011 showed that the Veteran presented with depression brought on by stress and an illness; his symptoms improved with Lexapro. In March 2012, Dr. P.S. indicated that the Veteran's depressive disorder was improving. By December 2012, he denied depression. Another note dated September 2013 shows depressive disorder described as a past medical problem, not a current one. In July 2013, Dr. P.S. provided a medical opinion in which he stated that because of the Veteran's left knee impairment, his was unable to exercise and due to the decrease in mobility, may have developed depression. In April 2016, Dr. P.S. clarified his previous statement, writing: [The Veteran] is currently under my care for his medical needs. On July 5, 2013 I wrote a letter stating that the hypertension and psychiatric impairment that [the Veteran] suffers from could both be derived from the left knee impairment. It is still my medical opinion that it is at least as likely as not secondary to his left knee impairment. Due to the inability to exercise, decrease in mobility, and constant pain, hypertension could have developed, as well as depression. Based on the above evidence, the Board finds that entitlement to service connection for depressive disorder is warranted. While under 38 U.S.C.A. § 1131, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation, a current disability exists for VA purposes if the diagnosed disability is present at the time the claim is filed or at any time during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the Veteran did have a diagnosis of depressive disorder for part of the period on appeal and his primary care physician has opined that it is at least as likely as not this condition developed secondary to his service connected left knee disability. Accordingly, entitlement to service connection for depressive disorder is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2016). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R., Part 4 (2016). An evaluation of the level of disability present includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2016). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2016). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The Veteran's left knee disability is rated under Diagnostic Code 5055, applicable to knee replacement (prosthesis). Under Diagnostic Code 5055, a 100 percent rating is warranted for one year following replacement implantation. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256, 5261 or 5262. The minimum rating is 30 percent. In this regard, Diagnostic Code 5256 provides a 30 percent rating for favorable angle ankylosis in full extension or in slight flexion between 0 and 10 degrees; a 40 percent rating for ankylosis in flexion between 10 and 20 degrees; a 50 percent rating for ankylosis in flexion between 20 and 45 degrees; and a 60 percent rating for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. See 38 C.F.R. § 4.71a, Diagnostic Code 5256. The Board notes that, for VA compensation purposes, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Additionally, Diagnostic Code 5261 provides a 10 percent rating for extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, a 30 percent rating for extension limited to 20 degrees, a 40 percent rating for extension limited to 30 degrees, and a 50 percent rating for extension limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Finally, Diagnostic Code 5262 provides for a 30 percent rating for malunion with marked knee or ankle disability and a 40 percent rating for non-union of the tibia or fibula with loose motion requiring a knee brace. See 38 C.F.R. § 4.71a, Diagnostic Code 5262. Normal range of motion of the knee is from 0 degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71a, Plate II. The Board notes that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40, and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that a disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the Veteran. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Id. In this case, the Veteran underwent his first left total knee replacement in 1998. Following the initial convalescence period during which a total (100 percent) disability evaluation was assigned, a 30 percent disability evaluation was assigned and remained in effect through March 2009, when the Veteran filed his current increased rating claim. In February 2014, the Veteran again underwent a left total knee replacement. A total disability evaluation was assigned, effective February 4, 2014, after which a 60 percent disability evaluation was assigned, effective April 1, 2015. The Board notes that since February 4, 2014, the Veteran has been awarded the maximum schedular evaluation that can be assigned under VA regulations for his service connected left total knee replacement and there is no basis for the Board to grant a higher rating. Therefore, the Board will only address whether a higher disability evaluation is warranted prior to February 4, 2014. The Veteran was afforded a VA examination in April 2009. At that time he reported being diagnosed with a dislocated patella secondary to a fall, progressing over time to degenerative joint disease which led to a total knee arthroplasty (TKA) in 1998. He reported pain in the left knee which occurs constantly and travels to his left leg. He described the pain as a 7/10 in severity. This pain can be elicited by physical activity, but also occurs spontaneously. It is relieved by rest and by the use of cane. He also described symptoms of stiffness, giving way, lack of endurance, and fatigability, but did not have weakness, swelling, heat, redness, locking, or dislocation. On examination, there was a level scar present at the left knee measuring about 20 cm by 0.5 cm. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation hyperpigmentation, abnormal texture, or limitation of motion. The Veteran's posture was within normal limits. His gait was antalgic, but examination of the feet did not reveal any signs of abnormal weight bearing or breakdown callosities or any unusual shoe wear pattern. For ambulation, he required a cane, but not a brace, crutches, corrective shoes, or a walker. There was tenderness and crepitus, but no signs of edema, effusion, weakness, redness, heat, guarding of movement, subluxation, genu recurvatum, or locking pain. Range of motion was from 0 degrees extension to 120 degrees flexion, with pain at 100 degrees. On the left the joint function was additionally limited by the following after repetitive use pain, fatigue, and lack of endurance, but not weakness or incoordination, with pain having the major functional impact. There was no additional limitation in degrees. The Veteran was unable to perform the stability tests for the left knee because he is status post TKA. In May 2013, the Veteran was afforded another VA examination. At that time, the Veteran complained of flare ups during which he is unable to walk or bend his leg. The Veteran had range of motion from 0 degrees extension to 115 degrees flexion, with pain at 110 and 45 degrees. There was no additional limitation of motion following repetitive testing. The examiner estimated that the Veteran might experience an additional 5-10 degrees limitation of motion during flare-up or following repeated use. There was tenderness to palpation. Muscle strength was normal and testing was negative for any instability. There was no history of patellar subluxation or dislocation or any meniscal condition. The examiner described the Veteran's condition as characterized by an "intermediate degrees of residual weakness pain or limitation of motion, with occasional locking." The Veteran reported using a cane. In May 2013, the Veteran was evaluated by an orthopedic surgeon, Dr. A.M.. He described constantly moderate-moderately severe pain associated with both knees, but worse on the right than on the left. He had a left knee replacement done in 1998 in August and it was failing, with plastic wear and instability. Both knees were unstable, again worse on the right than on the left. He had a valgus, i.e., knock-kneed, appearance and he had failed all non-operative management with regards to his right knee and would like to have it replaced. On examination, he walked poorly. He had an antalgic gait bilaterally, worse on the right than on the left. The left knee had a well-healed incision and good motion, but some mid-flexion instability and lateral thrust when he ambulates. An x-ray of the left knee showed a Genesis ll knee replacement with evidence of some instability and polyethylene wear. In June 2013, Dr. A.M. completed a Knee Impairment Questionnaire. He reported that the Veteran suffered from end stage arthritis of the right knee and a failing left knee replacement. Symptoms included constant moderate pain, worse on the right side, swelling, and giving way. The revision of the left total knee replacement was performed on February 4, 2014 by Dr. A.M.. At his April 2016 hearing, the Veteran reported that during the period from March 2009 to February 2104, his left knee disability was characterized by swelling, severe pain up and down the left leg, inability to extend his leg fully to the upright position, inability to stoop and bend due to severe pain in the knee and leg, and instability. He testified, "I was unable to walk for no more than a period of 5 to 10 minutes. I was, I was also facing at times where I fell because my leg, my instability, my stability gave out." Based on all the above evidence, entitlement to a disability evaluation in excess of 30 percent is not warranted. Range of motion testing reflects that throughout the period on appeal, limitation of motion has been mild to moderate in nature, even considering estimated additional limitation of motion due to repetitive use or during flare-ups. Despite the Veteran's subjective complaints of giving way, there is no clinical evidence of a loosening prosthesis or recurrent subluxation. Thus, the Board finds that the Veteran's symptoms are most reasonably characterized as an "intermediate" degree of weakness, pain, and limitation of motion under Diagnostic Code 5055. Accordingly, the Board has considered whether a disability evaluation greater than the minimum 30 percent disability rating under Diagnostic Code 5055 is warranted by rating by analogy under Diagnostic Code 5256, 5261, or 5262. However, there is no evidence that the Veteran's extension was ever limited to 30 percent or greater during the period on appeal or that he suffers from ankylosis or such extensive limitation of motion as could be rated by analogy as ankylosis. Accordingly, a rating in excess of 30 percent is not warranted under either Diagnostic Code 5256 or 5261. Additionally, while the Veteran has complained of a subjective sense of looseness and giving way in his left lower extremity, there is no clinical evidence of recurrent subluxation or patellar dislocation of the left knee and it does not appear that the Veteran required the use of a brace at any time during the period on appeal. While the Veteran is competent to offer his own subjective accounts of his symptomatology, the Board gives greater weight to the clinical evidence and in the absence of objective evidence of the Board finds that there is no basis for him to be rated by analogy under DC 5262 for non-union of the tibia and fibula with loose motion requiring a brace. Finally, the preponderance of the evidence weighs against a finding that the Veteran's symptoms prior to February 4, 2014 should be characterized as "severe." Objective testing shows that even when accounting for the effects of pain and fatigability, the Veteran's functional impairment due to his left knee disability was at most moderate in nature. The May 2013 VA examiner characterized the Veteran's left knee disability as "intermediate" and his pain was described by Dr. A.M. as moderate. Throughout the period on appeal, the Veteran's range of motion of the right knee has not been limited by more than 50 percent during the period on appeal, even following repetitive testing. While the Board acknowledges that the Veteran's symptoms of pain, weakness, and limitation of motion impacted his quality of life, considering all the above evidence, his symptoms did not more closely approximate a 60 percent evaluation under Diagnostic Code 5055 during the period on appeal. The Board has also considered whether a separate evaluation is warranted for instability of the right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5257. In this regard, the Board notes that while 38 C.F.R. § 4.71a, Diagnostic Code 5055, contemplates painful motion, weakness, and limitation of motion, 38 C.F.R. § 4.71a, Diagnostic Code 5257, contemplates recurrent subluxation and lateral instability of the joint. Accordingly, because these are separate manifestations, such consideration does not violate the rule against pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that 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 conditions is duplicative or overlapping with the symptomatology of the other condition). Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a knee impairment with recurrent subluxation or lateral instability is rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent disabling when severe. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board observes that the words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 . Here, although the Veteran has testified that he subjectively experienced a sensation of instability and giving way, the objective evidence of instability is extremely limited. In his May 2013 evaluation report, Dr. A.M. described the Veteran as suffering from mid-flexion instability, but did not provide any results of instability testing nor is it clear whether such tests were administered. Giving the Veteran the benefit of the doubt, the Board will assume that the Dr. A.M.'s description of the Veteran's left knee disability is based on some clinical finding, not merely the Veteran's subjective complaints and assign a separate compensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5257. However, in the absence of any specific details about the degree of instability the Veteran demonstrated or any objective evidence of instability prior to May 2013, the Board finds that any instability the Veteran suffered from is best characterized as slight and an evaluation in excess of 10 percent must be denied. In conclusion, the Board finds that a preponderance of the evidence is against a rating in excess of 30 percent for right knee replacement under Diagnostic Code 5055, but a separate rating 10 percent rating for instability is warranted under Diagnostic Code 5257. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 (2016). The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Service connection for depressive disorder is granted. Entitlement to a disability evaluation in excess of 30 percent for degenerative joint disease of the left knee, status post total knee replacement with residual scar under Diagnostic Code 5055 is denied. Entitlement to a separate 10 percent disability under Diagnostic Code 5257 is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs