Citation Nr: 1751929 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-25 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for the service-connected left knee degenerative joint disease prior to June 26, 2014, and in excess of 20 percent from June 26, 2014, to August 18, 2014. 2. Entitlement to an evaluation in excess of 30 percent for the service-connected left knee degenerative joint disease, status post total knee arthroplasty, from October 1, 2015 to September 2, 2016, and since November 1, 2016. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel INTRODUCTION The Veteran served in the Army from July 1958 to July 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. A review of the legacy content manager documents reveals additional VA treatment records that have also been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Prior to June 26, 2014, the Veteran's service-connected left knee degenerative joint disease was manifested by symptoms including pain and stiffness, with full extension and, at worst, 120 degrees of flexion. 2. During the period from June 26, 2014 to August 18, 2014, the Veteran's service-connected left knee degenerative joint disease was manifested by symptoms including pain, stiffness, and crepitus, with 15 degrees of extension and 100 degrees of flexion. 3. During all time periods pertinent to the claim, the Veteran's left knee, post-surgery, has manifested by no more than overall moderate residuals consisting of complaints of pain, weakness, and slightly limited or painful motion, but not chronic residuals consisting of severe painful motion or weakness. CONCLUSIONS OF LAW 1. Prior to June 26, 2014, the criteria for a rating in excess of 10 percent for left knee degenerative joint disease have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). 2. During the period from June 26, 2014 to August 18, 2014, the criteria for a rating in excess of 20 percent for left knee degenerative joint disease have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). 3. During the period from October 1, 2015 to September 2, 2016, and from November 1, 2016, the criteria for a rating in excess of 30 percent for service-connected left knee degenerative joint disease are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5055 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks higher disability ratings for a service-connected left knee disability. He initially filed his claim March 14, 2012 and has appealed his initial rating of 10 percent disabling assigned in the June 2013 rating decision. His left knee disability rating has since been increased by various Rating Decisions, but as these do not represent a total grant of benefits sought on appeal, the claim for increased rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Under Diagnostic Code 5260, in order for a disability evaluation in excess of 10 percent to be assigned under Diagnostic Code 5260, flexion of the knee must be limited to 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent or higher disability evaluation is warranted for extension limited to 10 degrees or more. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. (The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30). Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board has reviewed all of 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 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 claim and what the evidence in the claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Prior to a total left knee replacement surgery on August 18, 2014, the left knee was rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5261 based on limited and painful motion due to Degenerative Joint Disease. A 10 percent rating is assigned prior to June 26, 2014, and a 20 percent rating is assigned from June 26, 2014 to August 18, 2014. On August 18, 2014, the Veteran underwent a total left knee replacement. Following that surgery, the Veteran's left knee disability was recharacterized as a status post left knee replacement and was rated as 100 percent disabling from August 18, 2014 to October 1, 2014, under Diagnostic Code 5055. The minimum rating of 30 percent rating is assigned from October 1, 2015 to September 1, 2016, with a temporary 100 percent rating, under 38 CFR 4.30, from September 2, 2016 to October 31, 2016 and back to the 30 percent minimum since November 1, 2016. VA examination in March 2013 notes complaints of left knee pain. The Veteran reported flare-ups of occasional brief painful popping, and the Veteran was utilizing a cane at the time of the examination. The examiner noted that the Veteran's activities of daily living were unaffected. Physical examination revealed normal gait, with motion of the left knee limited to 120 degrees for flexion and 0 degrees extension. The Veteran reported no pain and crepitus throughout motion. The examiner found no additional limitations following repetitive use other than increased pain. There was no effect of incoordination, fatigue, weakness, or lack of endurance on his joint function. Joint stability was found to be normal. The Veteran's functional impact included no repetitive bending or lifting. The diagnosis was mild degenerative joint disease of the left knee. At a July 2017 VA examination, the Veteran continued to report pain in the left knee. Although the left knee replacement was well-healed, the Veteran still had some discomfort with weight bearing. He also continued to have occasional flares with standing or moving from sitting to standing positions with some swelling and weakness. He reported having stiffness with sitting in one position and limping with walking due to stiffness. The Veteran demonstrated full range of motion in his left knee on both initial testing and following three repetitions. The Veteran reported that if he was "standing on [the left knee] too long in one place, or walking on uneven ground, [the left knee] becomes too [tired] and it becomes extremely weak and [he has] to sit down." Joint stability testing revealed no joint instability. The examiner noted that the Veteran used a cane regularly due to low back condition and his left knee. The examiner further noted that the Veteran's status post left knee replacement was productive of no more than an intermediate degree of residual weakness, pain or limitation of motion. There is no contradictory medical evidence of record. Based on the above findings, the criteria for a disability rating in excess of 10 percent for degenerative joint disease with limited motion of the left knee has not been met for the time period prior to June 26, 2014. During this period, the evidence shows normal extension, flexion limited to 120, normal gait, and no additional limitation due to pain, fatigability, weakness or following repetitive motion. Flare-ups were described as only occasional brief painful popping. Although the Veteran reported pain throughout motion of the knee, the left knee was not shown to be additionally limited by that pain. Based on the foregoing, the Veteran has noncompensable limitation of motion of the left knee which, under Diagnostic Code 5010, warrants no more than a 10 percent rating. The RO recognized that the Veteran's left knee arthritis began to worsen prior to his total knee replacement, assigning a 20 percent rating effective from June 26, 2014 to August 18, 2014, due to limitation of extension to 15 degrees during an examination in June 2014. To warrant the next higher rating under that code, the medical evidence would have to show limitation of extension of 20 to 29 degrees. None of the examinations of record demonstrate these findings. Accordingly, a rating in excess of 20 percent is not warranted pursuant to Diagnostic Code 5261. Further, there is no code that would afford the Veteran ratings in excess of those currently assigned prior to his total left knee replacement. A rating pursuant to Diagnostic Code 5259 is not appropriate in this case because there is no evidence of symptomatic status post semilunar cartilage removal of the left knee. Limitation of flexion to 15 degrees is required for a 30 percent rating under 5260 and is not demonstrated. Moreover, as the Veteran does not have ankylosis of the knee, a rating under Diagnostic Code 5256 is not appropriate. Finally, there was no objective evidence of instability, and a separate rating under Diagnostic 5257 is also not appropriate. As noted above, the Veteran's left knee disability was recharacterized effective on August 18, 2014 because he underwent a total left knee replacement. A 100 percent rating was assigned from August 18, 2014 to October 1, 2014, under Diagnostic Code 5055. The minimum rating of 30 percent rating was assigned from October 1, 2015 to September 1, 2016, with a temporary 100 percent rating, under 38 CFR 4.30, from September 2, 2016 to October 31, 2016, returning to the 30 percent minimum since November 1, 2016. Accordingly, the Board need only consider the periods of October 1, 2015 to September 1, 2016 and since November 1, 2016. According to the above findings, a rating in excess of 30 percent for the status post left knee replacement is not warranted from October 1, 2015 onward, due to convalescence. Although the Veteran continued to report pain of the left knee more than a year after his surgery, improvement in function is clearly demonstrated as the Veteran has full range of motion. The examiner indicated that the Veteran's status post left knee replacement was productive of no more than an intermediate degree of residual weakness, pain or limitation of motion. These findings correspond to the assignment of a 30 percent rating under Diagnostic Code 5055. Moreover, there is no evidence of ankylosis, instability, or nonunion of the tibia and fibula to warrant a disability rating in excess of 30 percent under Diagnostic Codes 5256, 5257, or 5262. Hence, each of those diagnostic codes is inapplicable. Nor is there any indication that the Veteran has ever had extension of the left knee limited to 30 degrees or more to warrant a disability rating in excess of 30 percent under Diagnostic Code 5261; and the maximum rating for limited flexion of the knee, under 5260, does not exceed 30 percent. Hence, each of those diagnostic codes is inapplicable. To warrant the next higher, 60 percent rating under Diagnostic Code 5055, the Veteran's status post left knee replacement would have to be productive of chronic residuals consisting of severe painful motion or weakness in the affected extremity. This is not shown on the July 2017 examination report, and the Veteran has not provided any additional competent evidence to suggest otherwise. The Veteran demonstrated full range of motion in his left knee and only shows intermediate degrees of residual weakness, pain or limitation of motion. Thus, in sum, the assignment of a 30 percent rating for the service-connected status post total left knee replacement is warranted effective from October 1, 2014. For the reasons set forth above, the preponderance of the evidence is against the claim for a rating in excess of 10 percent prior to June 26, 2014, against the claim for a rating in excess of 20 percent from June 26, 2014 to August 18, 2014 and against the claim for a rating in excess of 30 percent from October 1, 2015 to September 1, 2016, and since November 1, 2016. There is no doubt to be resolved. 38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3. The Board has considered whether staged ratings are warranted and has assigned them accordingly. ORDER Entitlement to an evaluation in excess of 10 percent for the service-connected left knee degenerative joint disease prior to June 26, 2014, and in excess of 20 percent from June 26, 2014, to August 18, 2014, is denied. Entitlement to an evaluation in excess of 30 percent for the service-connected left knee degenerative joint disease, status post total knee arthroplasty, from October 1, 2015 to September 1, 2016, and since November 1, 2016, is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs