Citation Nr: 1756068	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  12-19 193	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to a rating in excess of 10 percent from July 7, 2008 to December 3, 2012 based on limitation of motion and in excess of 30 percent after February 1, 2014 for a right knee disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

M.D., Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1970 to May 1970.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction was later transferred to the RO in Detroit, Michigan.

In the December 2009 rating decision, the RO increased the Veteran's postoperative patellar transplant for recurrent subluxation of the right patella to 20 percent and denied entitlement for a disability rating in excess of 10 percent for a degenerative joint disease of the right knee.

In November 2012, the Veteran withdrew his issue concerning the evaluation of his postoperative patellar transplant for recurrent subluxation of the right patella. 

In December 2012, the Veteran underwent a total right knee joint replacement.

In October 2013, the RO granted entitlement to an increase evaluation for the Veteran's right knee condition and changed the Veteran's Diagnostic Code to take into account his right knee total arthroplasty. The RO granted a temporary evaluation of 100 percent effective December 3, 2012 until January 31, 2014 and then a 30 percent rating effective February 1, 2014.

In October 2016, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ), and a transcript of the hearing is of record.

In May 2017, the Board remanded this issue for further development to include scheduling the Veteran for a VA examination and obtaining the Veteran's medical record from Ann Arbor VA medical center.

The Board notes that the Veteran has additional appeals.  The Veteran has requested Board hearings as to these claims, however. These issues will be addressed in a separate decision after the Veteran is afforded the hearing he requested.


FINDINGS OF FACT

1. For the period prior to February 1, 2014, the Veteran's limitation of motion, when considering functional impairment, more nearly approximates flexion limited to 45 degrees.

2. The June 2009 MRI confirms that the Veteran had a medial meniscus tear and a small amount of joint effusion.

3. For the period from February 1, 2014, the Veteran's right total knee arthroplasty was manifested by intermediate degrees of residual weakness, pain, and limitation of motion. 


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent from July 7, 2008 to December 3, 2012 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5003 and 5260 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 

2. The criteria for a separate 20 percent disability rating for cartilage, semilunar dislocated, with frequent episodes of "locking," pain, and effusion into the joint have been met for the period from July 7, 2008 to December 3, 2012. 38 U.S.C § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017).

3. The criteria for an evaluation in excess of 30 percent for right knee total arthroplasty, since February 1, 2014, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist 

VA satisfied the duties to notify and assist in this appeal and neither the Veteran nor his representative have asserted any error as to these duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). 

In November 2009 and April 2017, the Veteran was provided VA examinations regarding his claim of increased rating for his knee disability. The Board finds these examinations to be adequate upon which to adjudicate the merits of this appeal.  

As previously noted, the Veteran was provided an opportunity to set forth his contentions before a Veterans Law Judges in October 2016. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran has not raised any deficiency with the hearing and the Board does not otherwise find any prejudicial error. See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).

The Board also finds that there has been substantial compliance with its May 2017 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

II. Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). 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; 38 C.F.R. § 4.1. 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

For disabilities of the musculoskeletal system, the Board also considers whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 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. 

Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell, 25 Vet. App. 32  

Lay statements, such as those made by the Veteran, are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007).

III. Background Facts 

The Veteran was originally granted a 10 percent disability rating for his degenerative joint disease of the right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5003 and a 20 percent disability rating for his postoperative patellar transplant for recurrent subluxation of the right patella under Diagnostic Code 5257. 

In November 2012, the Veteran withdrew the issue concerning the evaluation of his postoperative patellar transplant for recurrent subluxation of the right patella. Under the procedural history of this appeal, the Board finds that this was sufficient to limit to the Veteran's appeal to other manifestations of the right knee.  In this regard, the Board notes that this rating was previously mentioned at the Board hearing, but the Veteran, through his representative, previously made an informed choice to withdraw this aspect of the appeal from appellate status.  

On December 3, 2012, the Veteran underwent an arthroplasty and was temporarily granted a 100 percent disability rating. The Veteran's diagnosis changed to right knee total arthroplasty and was rated under Diagnostic Code 5055. As a result, he was assigned a 30 percent disability, effective February 2014.

Since the Veteran has challenged his disability rating throughout the appeal period, the discussion is broken down into two time periods to address the varying diagnostic codes and disability ratings.

IV. Entitlement to a rating in excess of 10 percent from July 7, 2008 to December 3, 2012

The Veteran contends that during the period from July 7, 2008 to December 3, 2012, he is entitled to a higher rating for his knee disability. 

As in the case here, a claimant who has both arthritis and instability of the knee may be rated separately under the appropriate diagnostic codes, as the rating criteria for arthritis involve limitation of motion and do not refer to instability. See VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998). 

However, since the Veteran has withdrawn his issue concerning the evaluation of his postoperative patellar transplant for recurrent subluxation of the right patella, rated under Diagnostic Code 5257, the Board will not address it in this decision. 

Diagnostic Code 5003 states that the severity of degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which, in this case, would be Diagnostic Codes 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg). Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II.

Under Diagnostic Code 5260, a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Id.  

Turning to the facts of the case, the Veteran submitted a buddy statement from his sister. She stated that the Veteran has reoccurring problems with his right knee. She reported that in October 2009, the Veteran took a "nasty fall" while trying to step down from the doorway to the porch. She expressed that when the Veteran was stepping down with his left foot, his right knee buckled and he stumbled. See August 2010 Buddy Statement  

In a January 2009 private treatment note, the Veteran was evaluated for his right knee pain. The Veteran stated his knee "stalled" about 3 weeks ago and since then, he has had medial pain without locking and intermittent swelling. The Veteran was found to have full extension without pain and that he lacks about 5 to 10 degrees of flexion.

In a June 2009 MRI note, the Veteran was found to have patellofemoral arthropathy with high-grade chondromalacia and numerous osteochondral erosions. There was a small amount of joint effusion. The Veteran was found to have a medial meniscus tear. The lateral meniscus was intact. 

In an August 2009 private treatment note, the Veteran was shown to have positive effusion which the Veteran stated was normal. It was noted that the Veteran had discomfort and crepitus with patellar mobility.  The Veteran was shown to have a full range of motion. 

In an October 2009 treatment not, the Veteran reporting experiencing increasing amount of knee pain with occasional episodes of bucking.  The Veteran was diagnosed with trace effusion. The examiner noted that the Veteran had full extension with reproduction of medial pain and flexion limited to 115 degrees with medial pain. There was no objective finding of ligamentous instability. The examiner noted that the Veteran typed up a letter to be sent to with the Veterans Administration in regards to his knee problems.

In an October 2009 letter from Dr. J.H., the physician expressed that the Veteran's June 2009 MRI shows a progressive deterioration of the right knee. The physician noted that the Veteran has several instances where his knee has buckled causing him to fall. Dr. J.H. reported that he fit the Veteran with a knee brace to help with the Veteran's stability. The physician stated that the Veteran is receiving cortisone injections to help with his pain. Dr. J.H. also expressed that the Veteran's condition has worsened to the point where he has difficulty going up and down stairs and walking for long distance. 

In November 2009, the Veteran was afforded a VA examination. The physical examination revealed that the Veteran has crepitation, clicks or snaps, grinding in the right knee, and moderate medial/lateral instability. The range of motion for flexion was 5 to 100 degrees (140 degrees is normal). Extension was limited to 5 degrees. There was no finding or additional loss of range of motion after repetitive use. However, there was objective evidence of pain following repetitive motion. There was no evidence of ankylosis.

In a January 2012 treatment note from Family Orthopedic Associates, the Veteran reported that his knee has been bothering him. The Veteran rated his overall pain as 3 out of 10. He stated that he has a catching and locking sensation of the knee and that it's difficult going up and down stairs. The Veteran was found to have significant patellofemoral crepitus noted with flexion and extension. His range of motion was from 5 degrees to 135 degrees. The physician also noted that the Veteran does not currently have ligamentous tissues. The physician opined that the Veteran's arthritis causes bucking of his knee. The physician recommended knee replacement surgery.

When considering limitation of motion of the Veteran's right knee joint, the Board finds that the evidence of record weighs against assigning a rating in excess of 10 percent at the relevant rating period.  Specifically, the evidence of record does not support a finding that the Veteran's right knee disability has resulted in, or more nearly approximated, flexion limited to 30 degrees or less, or extension limited to 15 degrees or more, at the relevant rating period. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. 

As noted above, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the Veteran experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7. The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). 

The Board notes that the Veteran has contended throughout the relevant claims period that the pain in his right knee prevents him from climbing up and down stairs, squatting, and walking for a long distance. The Veteran also contends that his right knee condition was so bad that he was forced to get a right knee replacement. 
Indeed, contemporaneous private and VA medical evidence of record confirms that the Veteran's right knee pain severely affect's the Veteran's activities. Private medical records show that the Veteran not only underwent right knee total arthroplasty, but also receives injections to manage the pain, as well as taking a regimen of prescription drugs to relieve his pain. The November 2009 VA examination also recorded that the Veteran did in-fact experience pain following repetitive use. 

Therefore, the Board finds that the Veteran's rating of 10 percent for his limitation of motion under Diagnostic Code 5003, does not contemplate factors laid out in 38 C.F.R. § 4.59, or DeLuca, 8 Vet. App. 202, and does not contemplate the additional function loss due to pain on motion. Accordingly, the next applicable rating level for the Veteran's right knee condition of 20 percent is warranted, as contemplated by Deluca, 8 Vet. App. 202, and the Veteran's claim for an increased rating must be granted.

A rating higher than 20 percent is, however, not warranted since the Veteran's limitation of flexion has not been shown to be limited to 15 degrees nor was his limitation of extension shown to be limited to 20 degrees. Therefore, an increased rating to 20 percent, but not higher, is warranted.

In addition, the Board finds that the Veteran's right knee condition warrants a separate 20 percent rating under Diagnostic Code 5258, as the Veteran has evidence of a medial meniscus tear and a small amount of joint effusion. The June 2009 MRI confirms that the Veteran had a medial meniscus tear and a small amount of joint effusion. The record also shows that the Veteran has frequently experienced buckling of his right knee to the point where he has fallen and fractured his right shoulder. As such, the Board finds that a separate rating of 20 percent is warranted under this diagnostic code, as such symptoms and effects are not contemplated by his other service-connected ratings..

V. Entitlement to a rating in excess of 30 percent from February 1, 2014

The Veteran had a total right knee replacement on December 3, 2012.  At that time, the RO began to rate the right knee disability under 38 C.F.R. § 4.71a, Diagnostic Code 5055 instead of Diagnostic Codes 5003 and 5257. 

Diagnostic Code 5055 and Note (1) essentially provided the Veteran with a total rating for the right knee for 13 months. As such, the Veteran's total rating commenced on December 3, 2012 and continued until January 31, 2014, at which time the Veteran's rating was reduced to 30 percent under Diagnostic Code 5055. 

For a rating in excess of 30 percent, the Veteran must have chronic residuals consisting of severe painful motion or weakness in the affected extremity or in the alternative, the right knee can be rated on ankylosis (Diagnostic Code 5256), limitation of extension of the knee (Diagnostic Codes 5261), or impairment of the tibia and fibula (Diagnostic Code 5262). 38 C.F.R. § 4.71a. 

Private treatment records from Ortho Michigan, dated April 2016, reveal that the Veteran experienced right knee pain. The Veteran reported that he did well after surgery in 2012 until about October 2015. He stated that he started having "giving away" episodes when climbing stairs and also with just standing still and twisting. 

On physical examination, the physician noted that the Veteran's knee was stable to varus, valgus, anterior, and posterior. The examiner noted that the Veteran has full extension and flexion past 105 degrees. The x-rays showed a well-fixed and well-aligned total knee arthroplasty. The examiner noted that it did not appear to have shifted or moved in any way. The examiner's assessment was that the Veteran's knee instability is most likely related to weakness in his quadriceps and ordered the Veteran to get physical therapy. 

The Veteran was afforded a VA examination in April 2017. The Veteran reported that his functional impairment includes limited prolonged standing, very limited stairs, difficulty getting out of low chairs, cannot squat, and decreased endurance of the right leg. 

The Veteran's initial range of motion for his right knee flexion was 5 to 90 degrees (140 degrees is normal). Extension was to 90 to 5 degrees.  Pain was noted on the exam and it was noted to cause functional loss. 

There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions; however there was additional functional loss to include pain, fatigue, and lack of endurance after the three repetitions. The range of motion after three repetitions for the Veteran's right knee flexion was 5 to 80 degrees and extension was 80 to 5 degrees.

The examiner noted that the Veteran's pain, weakness, fatigability or incoordination significantly limits the Veteran's functional ability with repeated use over time. The examiner was able to describe the limitation in terms of range of motion. The Veteran's flexion would be 5 to 75 degrees and his extension would be 75 to 5 degrees. 

The examiner also noted additional contributing factors to the Veteran's condition to include instability of station, disturbance of locomotion, and interference with standing. 

The examiner noted intermediate degrees of residual weakness, pain or limitation of motion following the Veteran's total knee joint replacement. The examiner also stated that there was pain on active and passive range of motion. 

In this case, the Board finds that a rating in excess of 30 percent is not warranted for the tight  knee total arthroplasty under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 or 5261. First, the Veteran's right knee is not ankylosed, thus a compensable rating is not warranted under Diagnostic Code 5256. Second, the Veteran's extension of the right knee was limited to 5 degrees, which warrants a noncompensable rating under Diagnostic Code 5261. Even considering additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, the Board cannot find that the Veteran's disability picture is of the severity to warrant a rating in excess of 30 percent for limitation of extension under Diagnostic Code 5261. 38 C.F.R. § 4.71a. Third, a rating in excess of 30 percent is not warranted under Diagnostic Code 5262. Id.  

While the Veteran reported that he wears a knee brace, the evidence is against the finding that the knee brace is required. The examiner observed that the Veteran's right knee strength on flexion and extension was normal. The examiner also noted that there was no history of recurrent subluxation in the right knee. As such, even rating by analogy, the Board cannot find that a rating in excess of 30 percent is warranted under Diagnostic Code 5262 for his right knee replacement.

Finally, the Board finds that a rating in excess of 30 percent is not warranted under 5055. The Board acknowledges the Veteran's functional impairment, including limited prolonged standing, very limited stairs, difficulty getting out of low chairs, and decreased endurance of the right leg. However, strength testing was normal with knee flexion and extension. Further, the examiner specifically found that the residuals from the right knee replacement included intermediate degrees of residual weakness, pain or limitation of motion.

Therefore, in view of the foregoing discussion, the claim for a rating in excess of 30 percent for a service-connected right knee total arthroplasty from February 1, 2014 must be denied. Because the evidence in this case is not approximately balanced with respect to this aspect of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. 49 (1990).


ORDER

Entitlement to a rating of 20 percent, but no higher, from July 7, 2008 to December 3, 2012 is granted.

Entitlement to a separate rating for a right knee medial meniscal tear under Diagnostic Code 5258, from July 7, 2008 to December 3, 2012 is granted. 

Entitlement to an evaluation in excess of 30 percent for right knee total arthroplasty, since February 1, 2014, is denied.



____________________________________________
Nathaniel J. Doan 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs