Citation Nr: 1806110 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-35 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating in excess of 30 percent prior to June 4, 2015, for status post total left knee replacement, in excess of 60 percent from June 4, 2015 to November 30, 2017, and in excess of 30 percent from December 1, 2017. 2. Entitlement to a rating in excess of 10 percent for peripheral neuropathy in the left lower extremity. 3. Entitlement to a rating in excess of 10 percent for a painful scar on the left knee. REPRESENTATION Veteran represented by: Robert Friedman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kass, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1977 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before a Veterans Law Judge in November 2014. However, the Veterans Law Judge who conducted the November 2014 hearing is no longer employed by the Board. Under 38 C.F.R. § 19.3(b), this appeal may be reassigned to another Veterans Law Judge for a decision. A transcript of the hearing has been associated with the record. In January 2015, the Board remanded this case for further development. The Board finds that there has been substantial compliance with the prior remand. In June 2015, the RO increased her rating from 30 percent to 60 percent disabling for her left knee. She was also granted a separate 10 percent rating for peripheral neuropathy in the left lower extremity, effective January 4, 2012. In December 2015, the RO granted a 10 percent rating for painful scars, one a post-surgical left knee scar and one a post-surgical spine scar. In December 2017, the RO decreased her rating for her left knee from 60 percent to 30 percent disabling. The Board has taken jurisdiction of all the above issues that are part of the consideration of the appropriate ratings to be assigned to the service-connected left knee disability. The issues of service connection for a right knee disability and bilateral hip disabilities, to include as secondary to her service-connected left knee disability have been raised by the record in at the November 2014 hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. Prior to June 4, 2015, the Veteran had intermediate degrees of residual weakness, pain, and limitation of motion. 2. From June 4, 2015, the Veteran has chronic residuals of severe painful and limited motion. 3. The Veteran's peripheral neuropathy manifested in mild severity. 4. The Veteran has one left knee scar that is painful but not unstable; the Veteran's other scars do not provide a basis for additional compensable rating(s). CONCLUSIONS OF LAW 1. Prior to June 4, 2015, the criteria for a rating in excess of 30 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5055 (2017). 2. From June 4, 2015, the criteria for a rating in excess of 60 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5055 (2017). 3. The criteria for a rating in excess of 10 percent for the Veteran's peripheral neuropathy in the left lower extremity have not been met or approximated. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 8721 (2017). 4. The criteria for a rating in excess of 10 percent for the Veteran's painful scar on the left knee have not been met or approximated. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a, DCs 7804, 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA satisfied the duty to notify in this appeal, and neither the Veteran nor her representative has asserted any error as to this duty. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). With regard to the duty to assist, the relevant records have been obtained. The Veteran was provided with several VA examinations regarding her claims in March 2010, March 2013, June 2015, and September 2015. Although the Veteran contended that her March 2013 examination was inadequate because it only addressed her replacement joint and not the residuals of the joint replacement, she was afforded two additional examinations to address her knee disabilities. After the March 2013 examination, she was granted separate ratings for peripheral neuropathy and surgical scars. The Board finds these examinations to be adequate upon which to adjudicate the merits of this appeal. II. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned specific diagnostic codes. 38 U.S.C.§1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 ; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A. Left Knee Disability The Veteran's status-post left knee arthroplasty is rated at 30 percent disabling under 38 C.F.R. § 4.71a, DC 5055. She had a 60 percent rating from June 4, 2015 to November 20, 2017. Prior to June 4, 2015, it was rated at 30 percent. Under DC 5055, at 30 percent is assigned for intermediate residual weakness, pain or limitation of motion. These residuals are rated by analogy to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71, DC 5055. Diagnostic Code 5256 provides rating criteria for ankylosis. Diagnostic Code 5261 provides a 10 percent rating when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is assigned when extension limited to 20 degrees. A 40 percent rating is assigned when extension is limited to 30 degrees. A 50 percent rating is assigned for limitation of extension to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261. Diagnostic Code 5262 provides ratings for impairment of the tibia and fibula based on nonunion or malunion of that joint. The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II (2017). Period prior to June 4, 2015 On review of the evidence, the Board finds that a 30 percent rating is appropriate prior to June 4, 2015. During this time, her extension was to 0 degrees. She reported flare-ups from physical activity but they did not result in functional loss or limitation of motion. See March 2010 VA examination report. A March 2010 x-ray showed no evidence of distal femur or proximal tibial abnormalities. The fibular head was unremarkable. In April 2011, she stated that she was in pain on a daily basis, did not sleep well, and could not walk long distances. In March 2013, the Veteran had normal strength in her knee. Although the Veteran continued to report a loosening of the implant, VA records and private records did not show a loosening. See February 2012 treatment records. Specifically, in May 2015, an x-ray showed no loosening of the prosthesis and no complications. Private records also indicated that she could walk without a significant antalgic gait. Although there was evidence of some functional loss, there was no showing of additional functional loss due to DeLuca, Mitchell, Correia, and Sharp factors to warrant a higher rating. The Board finds that her functional impairment due to pain has been addressed by the 30 percent rating assigned. See also Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The evidence shows that the Veteran experienced painful motion in the knee; however, it did not result in a separate and/or higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. The Board finds the evidence indicates that the Veteran's functional range of motion remains is not greater than that which would support a higher rating prior to June 4, 2015. Period from June 4, 2015 The Board finds that a 60 percent rating is appropriate from June 4, 2015, which is the highest rating under this code. A VA examiner determined that her abnormal range of motion contributed to functional loss in the form of limited motion, and described that limited motion as what felt like a mechanical stop. There was crepitus but no evidence of localized tenderness or pain with weight bearing. However, pain significantly limited her functional ability with flare-ups. The Veteran also had a reduction muscle strength in her flexion and extension. She reported falling and several near falls. In September 2015, there was evidence of localized tenderness and crepitus. After repetitive use testing, pain and lack of endurance caused functional loss. The Veteran reported that her flare-ups in caused pain that would keep her awake at night and she would occasionally have trouble walking. In this regard, the Board has fully considered the Veteran's lay testimony and the medical evidence of record. The Board has also considered the lay and medical evidence, to include all evidence of functional loss, and finds that is does not support ratings in excess of those currently granted. In September 2015, the Veteran reported that her flare-ups caused functional loss in the form of pain that restricted her from doing all the things she wanted to do. The evidence, however, does not provide a basis for finding that the Veteran's functional limitations are greater than those contemplated by the current rating, which is currently the highest rating under this code. In this regard, the 60 percent rating contemplates chronic residuals consisting of severe painful motion or weakness. The Board cannot find a basis for a higher rating. The Board, however, finds that the 60 percent rating is warranted for this entire period and that a reduction as of December 2017 is not warranted. The evidence indicates that there has not been an improvement in the disability and that a reduction at this time is not supported by the relevant, competent evidence. C. Peripheral Neuropathy The Veteran's left lower extremity peripheral neuropathy is rated 10 percent disabling under DC 8721, which pertains to neuralgia of the popliteal nerve. Under DC 8721, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; and, a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve, where the foot dangles and drops, with no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a (2017). The record shows the Veteran's peripheral neuropathy is mild. In January 2012, the Veteran reporting pain along the anterior aspect of the knee. She later reported a deep, burning pain with numbness down to her left ankle. In June 2013, treatment records showed a normal EMG with no electrodiagnostic evidence of lower extremity peripheral neuropathy. Although the Veteran contended that she felt "electric shocks", the June 2015 VA examiner was unable to provide objective evidence of any peripheral nerve problem. The Veteran stated the pain felt like a stabbing across her foot. This would happen three to four times a week for 30 seconds. Based on this medical and lay evidence of record, the Board finds that a 10 percent rating is warranted because the Veteran's nerve disability was mild and not moderate. The Board has considered both the lay and medical evidence of file but finds that the preponderance of the evidence weighs against a finding of more severe disability. As documented above, the medical evidence indicates that there are not objective signs of this disability. The 10 percent rating contemplates the Veteran for her subjective symptoms of intermittent pain. D. Left Knee Scar The Veteran's left knee scar is assigned a 10 percent rating under DC 7804, which pertains to unstable or painful scars, and a noncompensable rating under DC7805, which pertains to other scars. Although the Veteran has an additional scar on her back, only the scar on her knee is on appeal. Under DC 7804, one or two scars warrant a 10 percent rating, three or four warrant a 20 percent rating, and five or more warrant a 30 percent rating. Under DC 7805, other scars (including linear scars) and other effects of scars are evaluated under diagnostic codes 7800, 7801, 7802 and 7804. Any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 are to be evaluated under an appropriate diagnostic code. The record shows the Veteran has two painful scars, one on her left knee from her joint replacement and one on her back from her lumbar fusion. In March 2010, the Veteran's knee scar measured 19 cm by 1 cm and it was not painful. In September 2015, her lower back scar measured 10 cm and her knee scar measured 23 cm. The Veteran reported that her scars were painful. There was no evidence that they were unstable. Based on this body of evidence, the Board finds that a 10 percent rating is warranted under DC 7804 because she had two painful scars. A higher rating is not warranted under this code because there is no evidence of three or four painful scars. The medical and lay evidence does provide a basis for a compensable rating under other criteria. ORDER Prior to June 4, 2015, entitlement to a rating in excess of 30 percent for left knee disability is denied. From June 4, 2015, entitlement to a rating in excess of 60 percent for left knee disability is denied; the reduction of this rating to 30 percent is not warranted. A rating in excess of 10 percent for a left knee peripheral neuropathy is denied. A rating in excess of 10 percent for a left knee painful scar is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs