Citation Nr: 1801995 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 08-25 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a schedular rating in excess of 30 percent for total replacement of the right knee from June 1, 2016. 2. Entitlement to an extraschedular rating for total replacement of the right knee from June 1, 2016. REPRESENTATION Veteran represented by: Robert V. Chrisholm, Attorney ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1978 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied a rating in excess of 10 percent for right knee degenerative osteoarthritis. A May 2009 rating decision assigned a temporary total rating for the right knee disability from July 9, 2008 and continued the 10 percent rating from December 1, 2008. In May 2012 and May 2014, the Board remanded the case for additional development. In a June 2015 rating decision, the RO assigned a temporary total rating for purposes of convalescence for the right knee disability from April 20, 2015. In that decision, the RO also recharacterized the right knee degenerative osteoarthritis as right knee total replacement and assigned a 100 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5055, effective June 1, 2015. A 30 percent was assigned from June 1, 2016. In an October 2015 Board decision, the Board denied an extraschedular rating for the Veteran's right knee disability prior to April 20, 2015. The Board also denied a rating in excess of 10 percent for the Veteran's right knee disability based on limitation of motion prior to April 20, 2015, but granted separate 10 percent and 20 percent ratings based on right knee instability and meniscus damage, respectively, both prior to April 20, 2015. The Board also granted a separate 10 percent rating for the right knee disability based on functional impairment and loss prior to April 20, 2015. The Board then remanded the issue of entitlement to a total disability based on individual unemployment (TDIU) on an extraschedular basis. As for the issues of entitlement to an increased rating for the right knee disability from June 1, 2016 on schedular and extraschedular bases, presently on appeal before the Board, those issues were deferred in the October 2015 Board decision given that the temporary 100 percent rating (effective June 1, 2015 under Diagnostic Code 5055) was still in effect at the time of the October 2015 decision. The Veteran subsequently appealed the October 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2016 Order, the Court granted the parties' May 2016 Joint Motion for Remand (JMR), vacating the Board's October 2015 decision as to the denial of entitlement to an extraschedular rating for the right knee disability prior to April 20, 2015 and remanded the appeal to the Board for readjudication consistent with the JMR. The remaining aspects of the October 2015 Board decision were not disturbed in the May 2016 Order. The Board observes that the issue of entitlement to a TDIU on an extraschedular basis was subsequently granted in an August 2017 Board decision. The issue of entitlement to an extraschedular rating for the right knee disability prior to April 20, 2015 was denied in that decision. Therefore, neither issue is before the Board at this time. In September 2016 and August 2017, the Board remanded the present claims for additional development. FINDINGS OF FACT 1. Beginning on June 1, 2016, the Veteran's right knee total replacement has been manifested by mild to moderate painful motion without chronic residuals consisting of severe, painful motion or weakness in the affected extremity, ankylosis, limitation of extension to 30 degrees or greater, or impairment of the tibia and fibula. 2. Beginning on June 1, 2016, the Veteran's right knee total replacement has not been shown to be so exceptional or unusual to warrant the assignment of a higher rating on an extraschedular basis. CONCLUSIONS OF LAW 1. Beginning on June 1, 2016, the criteria for a schedular rating in excess of 30 percent for right knee total replacement are not met. 38 U.S.C §§1155, 5107 (West 2012); 38 C.F.R. §§4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2017). 2. Beginning on June 1, 2016, the criteria for an extraschedular rating for right knee total replacement are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist With respect to the Veteran's claims decided herein, no notice or duty to assist deficiencies have been alleged by the Veteran or his representative. 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). II. Pertinent Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The 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 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.A. § 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (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). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Since June 1, 2016, the Veteran has been in receipt of a 30 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5055 for his right knee total replacement. Diagnostic Code 5055 contemplates a 100 percent rating for one year following the implantation of prosthesis (i.e. a knee replacement surgery). At the expiration of the 100 percent rating for one year, a minimum rating of 30 percent is provided post knee replacement. For intermediate degrees of residual weakness, pain, or limitation of motion, warranting a rating greater than 30 percent but less than 60 percent, the code calls for rating by analogy to Diagnostic Codes 5256 (contemplating ankylosis), 5261 (contemplating limitation of extension), and 5262 (contemplating impairment of tibia and fibula). A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. III. Factual Background The pertinent facts for the increased rating claims on schedular and extraschedular bases will be discussed together herein as these issues relate to the same set of facts. A June 2016 VA treatment note reflects the Veteran's complain of increased knee pain. In an August 2016 VA treatment note, the treating physician observed that "as far as [the Veteran's] [right] knee is concerned, he [was] doing reasonably well here and [was] getting used to some of the occasional clicking that comes with a total knee [replacement]." The Veteran reported "some pain in his posterior calf region" for the past two to three weeks. The treating physician observed that "for the most part, [the Veteran was] functioning reasonably well." On physical examination, flexion was tested to be 120 degrees and extension to 0 degree. Mild crepitus and tenderness to palpation was noted. The Veteran was shown to be stable on Varus/valgus stress tests. Findings were negative for anterior and posterior drawer tests. In March 2017, the Veteran underwent a Knee Disability Benefits Questionnaire (DBQ) examination. The March 2017 DBQ examiner noted that the Veteran underwent a right knee replacement in 2015 for the previously diagnosed condition of right knee degenerative arthritis. The Veteran reported "chronic right knee pain daily," but no flare up was reported. On physical examination, the examiner measured right knee flexion to 85 degrees and extension to 0 degree. The range of motion itself contributed to functional loss, such that the Veteran was unable to "bend over and pick up anything from the floor." Pain was present with weight bearing, but there was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no finding of crepitus. The Veteran was able to perform repetitive use testing at least three times. There was no additional functional loss after three repetitions. On muscle strength testing, the Veteran's right knee flexion and extension were evaluated as "5/5," and there was no evidence of muscle atrophy. The examiner determined that there was no ankylosis as to the right knee. Further, upon stability examination, the Veteran tested normal for anterior, medial, and lateral instability. The examiner observed that the Veteran had a right knee anterior scar, measured to be 23 cm x 0.3 cm. The scar was not noted to be painful or unstable. A regular usage of a brace for the right knee was also noted. The examiner concluded that the right knee condition did not impact the Veteran's ability to perform any type of occupational tasks. IV. Schedular Rating For the period beginning on June 1, 2016, the Board finds that the evidence does not indicate chronic right knee total replacement residuals manifested by severe painful motion or weakness as to warrant a 60 percent rating under Diagnostic Code 5055. While pain was noted on range of motion testing as well as with weight bearing at the March 2017 DBQ examination, the Veteran performed right knee flexion to 85 degrees and extension to 0 degree, which would not be compensable under either Diagnostic Code 5260 or 5261, much less represent a severe degree of painful motion or weakness required to establish a 60 percent rating under Diagnostic Code 5055. Further, the Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss after undergoing three repetitions, and his muscle strength testing for right knee flexion and extension showed normal strength (5/5) during the March 2017 DBQ examination. In addition, during the August 2016 VA treatment, the Veteran reported "some pain" in the posterior calf region since the total right knee replacement, but he was found to be "functioning reasonably well." Collectively, the objective evidence does not more nearly approximate severe painful motion or weakness to warrant a 60 percent rating under Diagnostic Code 5055. The Board has also considered whether the Veteran is entitled to an increased right knee rating based on intermediate degrees of residual weakness, pain, or limitation of motion, to be rated by analogy to Diagnostic Code 5256 (contemplating ankylosis), 5261 (contemplating limited extension), or 5262 (contemplating impairment of tibia and fibula). In this regard, there has been no evidence of ankylosis or impairment of the tibia or fibula. Accordingly, intermediate ratings (greater than 30 and less than 60 percent) are not warranted at any point during the appeal period. As for limitation of extension, as noted above, the Veteran has not shown any limitation of extension, as he performed extension to 0 degree in August 2016 (during VA treatment) and in March 2017. Therefore, the Veteran is not entitled to a rating in excess of 30 percent under Diagnostic Code 5055 during the appeal period. In sum, the assigned 30 percent rating beginning on June 1, 2016 appropriately compensates the Veteran for the extent of his functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca, supra. In this regard, the evidence does not indicate functional loss more nearly approximating right knee flexion limited to 85 degrees or less or any limitation in extension, nor has the Veteran described limitation to these degrees in his lay statements. In assessing the severity of the right knee disability, the Board has considered the Veteran's assertions regarding his symptoms, to include chronic pain, which he is competent to provide. See e.g. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran's history and symptom reports during the appeal period have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability ratings that have been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of right knee disability. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected right knee total replacement. The Board has also considered whether staged ratings are appropriate for the Veteran's service-connected right knee total replacement. However, the Board finds that his symptomatology has been stable throughout the appeal period; therefore, assigned staged ratings for such disability is not warranted. V. Extraschedular Consideration In a February 2015 determination, the Director of Compensation and Pension denied an extraschedular evaluation for the Veteran's service-connected right knee disability. Therefore, the Board has jurisdiction of the claim. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step analysis for determining whether an extraschedular rating is appropriate. The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See id. First, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extraschedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); see also Thun, supra. Second, if the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). See 38 C.F.R. § 3.321(b)(1). Third, there must be a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. See Thun, supra. There is a justiciable standard limiting the Secretary's discretion for assignment of such a rating, namely that the extraschedular rating is commensurate with the average earning capacity impairment due exclusively to service connected disability or disabilities. Kuppamala v. McDonald, supra. Further, the Rating Schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified in the Rating Schedule 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. 38 C.F.R. § 4.1 (2017). Based on the foregoing, the Board finds that the Veteran's service-connected right knee total replacement has not been so exceptional or unusual to warrant the assignment of any higher rating on an extraschedular basis at any point since June 1, 2016. The Board finds that the Veteran's right knee symptomatology is fully addressed by the rating criteria under which the disability is rated. During the appeal period, the Veteran's right knee disability is manifested by pain and limitation of motion, which result in functional impairments, including his reported "inability to bend over and pick anything from the floor," see March 2017 DBQ report. The schedular rating criteria provide disability ratings for orthopedic disabilities based on limitation of motion and pain. See 38 C.F.R. §§ 4.45, 4.59. Further, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. Therefore, the Board finds that the Veteran's right knee symptoms and resulting impairment are contemplated in the rating schedule. There are no additional symptoms of the Veteran's service-connected right knee total replacement that are not addressed by the schedular criteria. As such, the Veteran's right knee disability picture during the appeal period is contemplated by the rating schedule, and the assigned schedular rating is, therefore, adequate. Even assuming, arguendo, that the Veteran's right knee symptomatology is not encompassed by the established rating schedule for that disability, the record does not show exceptional or unusual factors associated with the right knee disability on appeal. In this regard, the record does not indicate that the Veteran was hospitalized at any point during the appeal period due to his right knee disability. As for any occupational interference, he is currently in receipt of a TDIU, established solely due to his right knee disability, and is accordingly compensated for any occupational interference due to such disability. Accordingly, as the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application, and the claim for entitlement to higher extraschedular rating for service-connected right knee total replacement must be denied. See 38 U.S.C. § 5107 (b). ORDER A schedular rating in excess of 30 percent for right knee total replacement from June 1, 2016 is denied. An extraschedular rating for right knee total replacement from June 1, 2016 is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs