Citation Nr: 1751987 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-08 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 30 percent for status post total right knee replacement, since August 1, 2012. 2. Entitlement to a separate compensable rating for a left knee disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1972 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in April 2017, which granted a joint motion for partial remand vacating an April 2016 Board decision, in pertinent part, and remanding the issues on appeal for additional development. It was noted the Board's decision denying entitlement to an evaluation in excess of 10 percent for left knee osteoarthritis pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010, was dismissed. The issues initially arose from rating decisions in November 2008 and July 2011 by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that additional evidence was added to the appellate record subsequent to the April 2016 decision, including VA treatment records addressing the Veteran's right knee disability. A review, however, reveals that the evidence obtained is cumulative or duplicative of the evidence previously of record. In April 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue of entitlement to a separate compensable rating for a left knee disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence demonstrates that the Veteran's status post total right knee replacement since August 1, 2012, is manifested by intermediate degrees of residual weakness, pain, or limitation of motion without evidence of residuals analogous to extremely unfavorable ankylosis in flexion, knee extension limited to 30 degrees or more, or impairment of the tibia and fibula with nonunion, loose motion, and requiring a brace. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for status post total right knee replacement since August 1, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014), 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262 ( 2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any issue 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). Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 ( 2017). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2017). 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 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 5003, 5010, 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). As a preliminary matter, the Board notes the Veteran's claims for increased or separate ratings associated with his service-connected right knee disability prior to August 1, 2012, have been addressed by prior determinations not presently before the Board on appeal. Records show the Veteran underwent a right total knee arthroplasty in June 2011 and that a 100 percent rating was assigned effective until July 31, 2012. In statements and testimony in support of his appeal the Veteran asserted, in essence, that his right knee disability was more severely impaired than indicated by the present 30 percent rating. At his hearing in April 2014 he testified that he had been told his right leg was a quarter of an inch shorter that the left. He also reported having locking, popping, cracking, and grinding in the knee. The pertinent medical evidence of record includes a January 2013 VA examination report which noted the Veteran stated his knee pain had increased over the previous year with flare-ups of pain approximately three times per month lasting about one day. The diagnoses included right knee degenerative joint disease status post right knee replacement. Range of motion studies revealed right knee extension to 0 degrees and flexion to 115 degrees with no objective evidence of painful motion. Post repetitive motion testing revealed extension to 0 degrees and flexion to 125 degrees. There was no additional limitation in range of motion following repetitive-use testing, but there was functional loss or functional impairment due to pain on movement and stiffness. Muscle strength testing was normal to flexion and extension. Joint stability tests revealed medial-lateral instability. There was no evidence of recurrent patellar subluxation or dislocation. A June 2011 right total knee replacement was noted, but the examiner described the residual pain, limitation of motion, and stiffness in the knee as neither severe nor intermediate. It was noted the Veteran used a cane for ambulation and used braces on each knee. X-ray studies revealed arthritis, but no evidence of patellar subluxation. The examiner found the bilateral knee disorders limited physical work activities and recommended no excessive squatting, no lifting or carrying more than 30 pounds, and no excessive walking. It was noted that he could perform sedentary work with accommodations to avoid prolonged sitting. Pain during flare-ups were also believed to significantly limit functional ability. However, as indicated, that functional loss was not quantified to any additional loss of range of motion. An April 2013 private treatment record noted that the Veteran had undergone several cortisone injections to the knees. Strength was 5/5 on the right. There was full extension of the right knee with 90 degrees of flexion. McMurray's testing was positive. No instability of the knee was endorsed or observed. The diagnoses included status post right total knee replacement. VA examination in August 2013 noted that since his surgery in June 2011 the Veteran had participated in physical therapy and taken medication for his right knee pain. It was noted he reported flare-ups of pain and stiffness at few time per year which lasted from one to two days. He described having a moderate impairment during flare-ups. Range of motion studies revealed right knee extension to 0 degrees with no objective evidence of painful motion and flexion to 100 degrees with objective evidence of painful motion at 75 degrees. Post repetitive motion testing revealed extension to 0 degrees and flexion to 100 degrees. There was no additional limitation in range of motion following repetitive-use testing, but there was functional loss or functional impairment due to less movement than normal, pain on movement, and swelling. It was noted that there would be a moderate increase in loss of range of motion with flare-ups due to pain, but that it could not be expressed in degrees after repeated use as the range of motion could not be replicated. Muscle strength testing revealed active movement against some resistance to flexion and normal to flexion and extension. Joint stability tests revealed normal knees. There was no evidence of recurrent patellar subluxation or dislocation. A June 2011 right total knee replacement was noted, but no residuals were identified. It was noted that the Veteran used crutches constantly as a normal mode of locomotion. X-ray studies revealed arthritis, but no evidence of patellar subluxation. The examiner found the knee disability impacted the ability to work with limitations including no lifting, walking at one time to a quarter of a mile, walking during an eight hour day to one mile, sitting or standing at one time of 10 minutes, and sitting or standing during an eight hour day of one hour. An August 2013 MRI scan revealed status post right total knee arthroplasty with intact hardware. No acute osseous abnormalities were identified. VA examination in May 2014 included a diagnosis of right knee degenerative joint disease, status post total knee replacement. The Veteran reported his knees popped when he goes to stand and that he was limited in his ability to squat. He estimated his pain as eight on a ten point scale. He described moderate daily right knee discomfort. He noted a history of the knee giving out. The examiner noted that additional range of motion loss due to pain on use or during flare-ups could not be objectively quantified. Range of motion studies revealed the knee could not be fully extended with extension to five degrees, but with no objective evidence of painful motion. Flexion was to 85 degrees with no objective evidence of painful motion. Post repetitive motion testing revealed extension to 5 degrees and flexion to 85 degrees. There was no additional limitation in range of motion following repetitive-use testing, but there was functional loss or functional impairment due to less movement than normal and pain on movement. Muscle strength was normal to flexion and extension. Joint stability tests revealed normal knees. There was no evidence of recurrent patellar subluxation or dislocation. The Veteran was noted to have undergone a total right knee replacement in June 2011 and the examiner found residuals with intermediate degrees of residual weakness, pain, or limitation of motion. It was also noted he used crutches constantly as a normal mode of locomotion. X-ray studies revealed arthritis, but no evidence of patellar subluxation. The examiner found there was no evidence of ankylosis or instability. It was further noted that his bilateral knee disorders would limit heavy lifting and carrying, repetitive squatting, and prolonged walking, but did not appear to limit sedentary work. In its April 2017 order the Court incorporated the terms of a joint motion for partial remand and noted, in essence, that consideration was required as to whether the entirety of the evidence of record more nearly approximated chronic residuals of severe painful motion or weakness. The Board was also requested to include an "articulation of a standard for differentiating between intermediate and severe" painful motion or weakness under Diagnostic Code 5055. Based upon the evidence of record, the Board finds the Veteran's service-connected status post total right knee replacement since August 1, 2012, is manifested by intermediate degrees of residual weakness, pain, or limitation of motion without evidence of residuals analogous to extremely unfavorable ankylosis in flexion, knee extension limited to 30 degrees or more, or impairment of the tibia and fibula with nonunion, loose motion, and requiring a brace. There is no evidence of current manifestations similar to symptoms associated with ankylosis or a tibia or fibula impairment with nonunion or loose motion. Nor is there any evidence of a limitation of leg extension to 30 degrees. Range of motions studies upon VA examinations are shown to have adequately considered pain and functional loss due to other factors. The present 30 percent rating is the minimum rating to be assigned under Diagnostic Code 5055. The persuasive evidence demonstrates no chronic residuals consisting of painful motion or weakness in the right extremity that was considered to be severe. Although the Joint Motion of Partial Remand requested an articulation of a standard for differentiating between intermediate and severe painful motion or weakness under Diagnostic Code 5055, the Board finds in this case that the specific determinations of residual pain, limitation of motion, and stiffness in the knee that were neither severe nor intermediate in January 2013 and of intermediate degrees of residual weakness, pain, or limitation of motion in May 2014 are medical findings shown to have been based upon adequate examination and review of the evidence. The Board has no basis to contradict the conclusions made by the examiners. 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). Nor is there any indication that the findings were medically or factually inaccurate. 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). Such was addressed in the aforementioned examinations. The evidence is not indicative 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. Recognition is given to the January 2103 examination that showed mild instability of the right knee. However, the August 2013 VA examination clearly noted that joint stability testing was normal. There was similarly no instability detected on an examination in May 2014. There was also no indication of instability in the April 2013 private examination report. In short, the findings of the January 2013 examination are inconsistent with the remaining records. It is also telling that the Veteran didn't even complain of instability when he was seen three months later in April 2013. The totality of the evidence does not support the assignment of a separate compensable rating under Diagnostic Code 5257 nor is mild instability considered to be analogous to the Diagnostic Code 5262 requirement of impairment of the tibia and fibula with nonunion, loose motion, and requiring a brace for a higher 40 percent rating. The Veteran has also testified that his right leg was a quarter of an inch shorter that the left. The Board notes, however, that additional separate compensation is assigned only for leg shortening greater than one and a quarter inches. 38 C.F.R. § 4.71a, Diagnostic Code 5275 (2017). The Board acknowledges that the Veteran is competent to report symptoms of his knee disability. 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). He is not, however, competent to identify a specific level of disability. Such competent evidence concerning the nature and extent of the Veteran's service-connected right knee disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board accords these objective records greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Therefore, a schedular rating in excess of 30 percent for the service-connected status post total right knee replacement since August 1, 2012, disability must be denied. The Veteran has not raised the matter of an extraschedular rating and the evidence does not present any exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). No further action as to this specific matter is required. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to a rating in excess of 30 percent for status post total right knee replacement, since August 1, 2012, is denied. REMAND The Court has incorporated the terms of a joint motion for partial remand and has found that additional action is required for the issues on appeal. It was noted, in essence, that the Board appeared to afford greater probative value to the objective evidence of record without providing an adequate statement of reasons or bases for the determination that lay statements were outweighed by the medical evidence. A remand was found to be necessary to consider the credibility of the Veteran's lay statements as to instability. The Board also notes that VA treatment show the Veteran was scheduled to undergo a left total knee replacement in May 2016, but that records show he fell and broke his right hip on the day of the procedure when his left knee gave way. He underwent a right hip replacement and his left knee was not replaced. As the evidence indicates the Veteran's left knee disability has increased in severity since his May 2014 VA examination, additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA medical records not yet associated with the appellate record. 2. Schedule the Veteran for an appropriate VA examination for opinion as to the current nature and extent of his service-connected left knee disability. The examiner must record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing information, must address the necessary findings to evaluate functional loss during flare-ups, or must clearly explain why the required testing cannot be completed or is not necessary. The examiner should summarize the pertinent evidence of record and reconcile any opinions provided with the other evidence of record. All manifest symptoms involving the knee should be identified with an assessment as to the degree of severity. Any reports, including lay reports, indicating left knee instability during the course of the appeal should be reconciled with the objective medical findings of record. (For example, whether the Veteran's subjective reports of knee instability are consistent with the medical findings of record.) All examinations, tests, and studies must be conducted. The medical reasons for the opinions provided should be set forth in detail. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). Merely saying he/she cannot comment will not suffice. 3. Thereafter, the AOJ should address the issue remaining on appeal. If the benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs