Citation Nr: 1752357 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-16 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for post-operative right knee arthritis prior to February 12, 2016. 2. Entitlement to a rating in excess of 20 percent for limitation of extension for right knee from February 12, 2016 to May 18, 2016. 3. Entitlement to a rating in excess of 30 percent for right total knee arthroplasty as of July 1, 2017 (exclusive of the time period where a total rating has been assigned). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from June 1959 to May 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 10 percent rating for postoperative right knee arthritis. In a February 2016 rating decision, the RO granted a 20 percent rating for limitation of extension for right knee (previously rated as postoperative right knee arthritis), effective February12, 2016. In October 2016, the RO granted a 100 percent rating from May 18, 2016, to July 1, 2017, and a 30 percent rating thereafter, for right total knee arthroplasty (previously rated as limitation of extension for right knee and postoperative right knee arthritis). With the exception of the total rating awarded for the one year period subsequent to the right total knee arthroplasty, these increases did not satisfy the appeal in full and the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In December 2015 and November 2016, the Board remanded the case for additional development. FINDINGS OF FACT 1. Prior to July 1, 2017, the Veteran's right knee disability manifested with pain, swelling, and extension limited to no more than 15 degrees and flexion limited to no less than 55 degrees; and without ankylosis, impairment of the tibia or fibula, or genu recurvatum. 2. Beginning July 1, 2017, the residuals of the right total knee arthroplasty are not shown to have been manifested by chronic residuals consisting of severe painful motion or weakness; or intermediate degrees of residual weakness and pain, resulting in limitation of flexion to less than 15 degrees, ankylosis, or nonunion of the tibia and fibula. CONCLUSIONS OF LAW 1. Prior to February 12, 2016, the criteria for a 20 percent rating, and no higher, for right knee limitation of extension are met. 38 U.S.C. § 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5261 (2017). 2. From February 12, 2016 to May 18, 2016, the criteria for a rating in excess of 20 percent for right knee limitation of extension are not met. 38 U.S.C. § 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261 (2017). 3. From July 1, 2017, the criteria for a rating in excess of 30 percent for a total right knee arthroplasty are not met. 38 U.S.C. § § 1155, 5107 (2014); 38 C.F.R. § 4.71a, DCs 5055, 5256, 5261, 5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2014); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 should be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2016). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veteran's Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Regulation also specifies that when testing joints, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2016). Furthermore, the Court has held that VA examinations should comply with Section 4.59 to be adequate. Correia v. McDonald, 28 Vet. App. 158, 168-169 (2016). In Correia, the Court held that joints rated on the basis of limitation of motion should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. Id. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II (2016). Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. The rating schedule also provides that dislocation of semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2016). Diagnostic Code 5259 provides for the assignment of a maximum 10 percent rating based on symptomatic removal of the semilunar cartilage. VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Period Prior to February 12, 2016 Prior to February 12, 2016, the Veteran's right knee disability was rated at 10 percent, pursuant to 38 C.F.R. § 4.71a, DC 5261. VA treatment records show complaint of knee pain. At a VA examination in July 2009, Veteran reported an occasional flare-up in his knee, about three or four times in the past year. Flare-ups interfered his navigating stairs and prolonged walking and caused swelling. He reported current symptoms included constant pain, stiffness, swelling, and some give way. On physical examination, his medial and lateral collateral ligaments were intact. There was limitation of extension with a 13 degree flexion contracture; range of motion was 80 degrees flexion and 13 degrees extension. The examiner noted that loss of function due to flare ups could not be determined without resorting to speculation. The right knee arthritis was described as severe. In a July 2009 addendum, the examiner reported that right knee flexion was limited to 80 degrees and extension was limited to 13 degrees; the overall range of motion was from 13 to 80 degrees. In March 2017, pursuant to the board's November 2016 remand, an addendum was obtained regarding the 2009 examination report. The examiner was to address whether pain would have impaired the Veteran's right knee joint on both active and passive motion in weight-bearing and non weight-bearing, and, if so, whether it is possible to express any such impairment in terms of additional degrees of limited motion. The examiner reviewed the 2009 VA examination report and opined that it is at least as likely as not that the Veteran's right knee pain would have impaired extension and flexion beyond the 13 degrees of extension observed during that examination because the Veteran reported pain on weightbearing during walking and standing for more than 10 minutes at a time; pain [AND effusion] impaired flexion beyond 80 degrees. The examiner further explained that pain would be expected on active and passive motion and with weight-bearing and non weight bearing motion because such is consistent with tri-compartmental arthritis of the knee. The Veteran has a baseline pain rated at 3-4; however, with activity beyond a sedentary level, he experiences flare-up with marked swelling and pain level 7 which indicates the Veteran has pain with and without weight bearing. The examiner concluded that is not possible to determine precise percentage loss due to pain because there is no method for such a determination, but estimated that considering functional loss the Veteran would have 13 degrees of extension and 60 degrees of flexion. After reviewing the evidence of record, the Board finds that a 20 percent rating, and no higher, is warranted for the Veteran's right knee for the appeal period prior to February 12, 2016. The March 2017 addendum opinion reflects that the Veteran's right knee extension would more nearly approximate at least 15 degrees of extension when considering functional loss due to flares and/or repeated use over a period of time. A higher rating of 30 percent is not warranted for limitation of extension, as the evidence does not reflect extension limited to, or more nearly approximating 20 degrees. At the 2009 VA examination, the Veteran reported only occasional flare-ups. There is no indication, however, that there has been further limitation of extension. Given the foregoing, the Board cannot conclude that functional loss causes additional limitation of motion. The Board finds that the right knee manifests in a noncompensable degree of limitation of flexion pursuant to DC 5260. A minimum rating of 10 percent is warranted where flexion is limited to 45 degrees or less. The evidence does not show that the Veteran's knee has manifested in such limitation flexion, to include in consideration of 38 C.F.R. §§ 4.40 and 4.45. The 2017 addendum opinion reflects that even when considering functional loss due to flares and/or repeated use over a period of time, the Veteran's additional loss of motion would result in flexion limited to 60 degrees. This is the equivalent of a noncompensable rating under DC 5260. The Board has considered the applicability of other potential diagnostic codes for higher or separate ratings. A separate rating under DC 5257 is not for assignment as the evidence fails to show objective, clinical evidence of instability. The 2009 VA examination report shows ligament stability tests were normal, despite the Veteran's subjective complaint of some give-way. Consideration of DC 5258 and 5259 is appropriate here in light of the Veteran's right knee surgery as well as his history of pain and effusions. However, to assign the Veteran a separate rating under DC 5258 or 5259 would constitute impermissible pyramiding in this case. The right knee arthritis is manifested by painful limited motion, weakness, effusion and functional impairment. Diagnostic Code 5258 makes reference to "locking, pain, and effusion-" symptoms that tend to overlap with the rating criteria of Diagnostic Code 5261 that contemplate limitation of motion and pain in the knee through functional impairment with use. Also, a history of locking has not been clearly shown. Further, compensation for any symptomatology for removal of semilunar cartilage (DC 5259) would overlap with the already compensated arthritis. The right knee is considered "symptomatic" as the Veteran has chronic pain and reports functional limitation with prolonged standing or walking and activities. Diagnostic Codes 5010 and 5261 contemplate limitation of motion, pain and functional loss due to pain. See VAOPGCPREC 9-98. The Veteran's pain is also contemplated under the evaluation for arthritis under DC 5010. To assign a separate rating under DC 5259 would violate the prohibition against pyramiding as these codes overlap in ratings based on pain as forms of limitation of motion. 38 C.F.R. § 4.14; See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). As assigning separate compensable ratings under DC 5258 or 5259 would constitute pyramiding prohibited by 38 C.F.R. 4.14; such is not appropriate. In addition, there is no evidence that the right knee disability is productive of ankylosis or complete immobility of the knee joint; malunion or nonunion of the tibia and fibula, therefore Diagnostic Codes 5256 and DC 5262 are not applicable. Period from February 12, 2016 to May 18, 2016 From February 12, 2016 to May 18, 2016, the Veteran's right knee disability was rated 20 percent for limitation of extension under DC 5261. The Veteran was afforded a VA examination in February 2016. At the examination, the Veteran reported that his leg does not bend enough for him to easily get in and out of cars or boats and sleeping is problematic. He reported that he is restricted in any activity, but also noted problems with his hips and back in this regard. The Veteran reported daily pain and occasional swelling. The Veteran reported flares and additional functional loss brought on by activity (i.e. like shopping with his wife or while doing yard work) and with repeated use over time, characterized by swelling and pain level increasing to 6 or 7 out of 10 but eventually subsiding after a period of 10 to 15 minutes of rest. Functional limitations included difficulty walking climbing up and down stairs, and unable to squat. Upon examination, the Veteran was noted to have abnormal range of motion with flexion between to 0 to 85 degrees and extension between 85 to 15 degrees. The examiner noted pain during range of motion testing in flexion but it did not result in additional functional loss. Repetitive testing was done without additional functional loss. Ankylosis was not present. The examination was not conducted during a flare, but the examiner noted that pain, weakness, fatigability and incoordination did not significantly limit functional ability with flare-ups. However, swelling, deformity, and disturbance of locomotion contribute to disability. A history of meniscal condition was noted with frequent episodes of joint pain and effusion. The examiner observed that there was right lateral knee swelling and osteoarthritic deformity with prominent protrusion along the right medial-inferior knee. Results from joint stability testing were normal. The examiner observed that the Veteran's gait is mildly antalgic, but independent. No use of any assistive device was observed. There was no recurrent subluxation, history of lateral instability, or any other tibial and/or fibular impairment. The examiner gave a diagnosis of knee joint osteoarthritis of the right side and noted severe functional limitations in the Veteran's ability to perform occupational tasks such as standing, walking, lifting and sitting. In a February 2016 treatment record, imaging showed severe tri-compartmental osteoarthritis. A May 2016 treatment record showed diffuse tenderness over the knee with a large effusion. Upon examination, the range of motion was observed to between -5 degrees, flexing to 85 degrees with severe patellofemoral crepitus. Pursuant to the Board's November 2016 remand, the VA obtained an addendum opinion in March 2017 to comply with the requirements of Correia. The examiner reviewed the February 2016 VA examination report and opined that it is at least as likely as not that the Veteran's right knee pain would have impaired extension beyond the 15 degrees noted and flexion beyond the 85 degrees observed during the February 2016 examination because the Veteran reported pain on weightbearing during walking and standing for more than 10 minutes at a time; pain [AND effusion] impaired flexion beyond 80 degrees. The examiner further explained that pain would be expected on active and passive motion and with weight-bearing, and nonweight bearing motion because such is consistent with tri-compartmental arthritis of the knee. The examiner concluded that is not possible to determine precise percentage loss due to pain because there is no method for such a determination, but estimated that considering functional loss the Veteran would have 15 degrees of extension and 55 degrees of flexion. After reviewing the evidence of record, the Board finds that a rating in excess of 20 percent for the Veteran's right knee limitation of motion in extension is not warranted as the evidence reflects extension was not limited to, or more nearly approximated, 20 degrees so as to warrant assignment of a 30 percent rating under DC 5261. The May 2016 treatment record showed the extension limited to -5 degrees. The February 2016 VA examination showed extension was limited to 15 degrees. A March 2017 addendum opinion to the 2016 VA examination report shows the examiner accounted for the Veteran's additional functional loss upon flares and with repeated use over time, but in his clinical estimation, found that the Veteran's right knee extension would not equate to 20 degrees of limitation. As the evidence does not show right knee extension limited to, or more nearly approximating, 20 degrees, even when considering functional loss due to flares and/or repeated use over a period of time - a rating in excess of 20 percent is not warranted. The Board has considered the applicability of other potential diagnostic codes for higher or separate ratings. A minimum rating of 10 percent is warranted where flexion is limited to 45 degrees or less. The evidence does not show that the Veteran's knee has manifested in such limitation flexion, to include in consideration of 38 C.F.R. §§ 4.40 and 4.45. The addendum opinion reflects that even when considering functional loss due to flares and/or repeated use over a period of time, the Veteran's additional loss of motion would result in flexion limited to 55 degrees. This degree of limited motion warrants the assignment of a noncompensable rating under DC 5260. Separate ratings under DC 5258 and 5259 are not appropriate for the reasons previously discussed (i.e. pyramiding prohibited by 38 C.F.R. 4.14). See 38 C.F.R. § 4.14; See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). As noted, there is also no evidence that the right knee disability is productive of ankylosis or complete immobility of the knee joint; malunion or nonunion of the tibia and fibula, therefore Diagnostic Codes 5256 and DC 5262 are not applicable. Period Beginning July 1, 2017 The Veteran underwent right total knee arthroplasty on May 18, 2016. Effective July 1, 2017, his right knee disability is evaluated at 30 percent, under 38 C.F.R. § 4.71a, DC 5055, used for rating knee replacement (prosthesis) following surgery. DC 5055 allows for a 100 percent rating for one year following implantation of the prosthesis. After the expiration of that period, a minimum 30 percent disability rating may be assigned for prosthetic replacement of the knee joint. Greater disability ratings may be assigned for prosthetic knee replacement with intermediate degrees of residual weakness, pain, or limitation of motion, to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. The maximum disability rating available for postoperative residuals of a knee replacement is 60 percent, if accompanied by chronic residuals consisting of severe painful motion or weakness in the affected extremity. A higher rating is precluded by 38 C.F.R. § 4.68, which provide that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. Amputation of the leg at the middle or lower third of the thigh calls for a 60 percent rating under Diagnostic Code 5162, and a higher rating is not assignable unless there is amputation of a lower extremity at the upper third of the thigh. 38 C.F.R. § 4.71a, DC 5161. Under Diagnostic Code 5256, for ankylosis of the knee, a 40 percent rating contemplates the knee fixed in flexion between 10 and 20 degrees; a 50 percent rating contemplates the knee fixed in flexion between 20 and 45 degrees; and a 60 percent rating contemplates extremely unfavorable ankylosis, with the knee fixed in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5261. Diagnostic Code 5261 provides for a 40 percent rating where extension is limited to 30 degrees. Where extension is limited to 45 degrees, a 50 percent rating may be assigned. Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Having reviewed the VA treatment records, the Board finds that at no time during the appeal have the criteria been met for a schedular rating in excess of 30 percent, for the right total knee replacement. The Board has considered whether disability ratings may be assigned for prosthetic knee replacement with intermediate degrees of residual weakness, pain, or limitation of motion. The medical evidence during this appeal period does not contain findings pertinent to the Veteran's right knee- and specifically does not show evidence of ankylosis, malunion of the tibia and fibula, or extension limited to at least 30 degrees. Further, a 60 percent rating is not warranted as the evidence does not support a finding of chronic residuals consisting of severe painful motion or weakness in the affected extremity. In short, for the appeal period prior to February 12, 2016, a 20 percent rating, and no higher, is warranted for right knee limitation of extension. From February 1, 2016 forward, ratings in excess of those already assigned are not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). There are no additional expressly or reasonably raised issues presented on the record. ORDER Prior to February 12, 2016, a 20 percent rating, and no higher, for limitation of extension for right knee is granted. From February 12, 2016 to May 18, 2016, a rating in excess of 20 percent for limitation of extension for right knee is denied. From July 1, 2017, a rating in excess of 30 percent for right total knee arthroplasty is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs