Citation Nr: 18140261 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 08-30 604 DATE: October 2, 2018 ORDER Service connection for a right knee disability is granted. Restoration of service connection for left knee arthritis with loss of flexion, left knee arthritis with loss of extension, and left knee laxity, since March 1, 2014, is denied. An initial schedular rating in excess of 10 percent for left knee arthritis with limitation of flexion prior to March 1, 2014, is denied. REMANDED An increased rating greater than 30 percent for residuals of a left total knee arthroplasty is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability is proximately due to or aggravated by his service-connected left knee disability. 2. The severance of service connection for left knee arthritis with limitation of flexion, left knee arthritis with limitation of extension, and left knee laxity, since March 1, 2014, was proper. 3. Prior to March 1, 2014, flexion of the left knee was limited to no more than 45 degrees, even with consideration of associated pain and functional loss. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for restoration of left knee arthritis with limitation of flexion, left knee arthritis with limitation of extension, and left knee laxity since March 1, 2014, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, DC 5055. 3. The criteria for an initial schedular rating in excess of 10 percent for limitation of flexion of the left knee prior to March 1, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1971 to March 1975. Service Connection The VA treatment records show the Veteran has a current diagnosis of a right knee disability. A March 2015 VA physician opined that, because the Veteran’s left knee had become painful for the years prior to his left knee arthroplasty, it was reasonable to consider his resultant change in gait as the etiology of his right knee degeneration. A February 2016 VA physician stated that it was certainly possible that the Veteran’s right knee pain became worse when he was favoring his left knee prior to his left knee surgery. Finally, a December 2013 VA physician stated that there were multiple etiologies for osteoarthritis, and that it was possible that the Veteran had favored his left knee for so long that it exacerbated the symptoms of his right knee. The Board finds that these three opinions, all provided by orthopedic specialists, are highly persuasive and support the Veteran’s claim for service connection. Given the expertise of the physicians, the Board finds that they outweigh the May 2014 VA examination finding that it was less likely than not that the Veteran’s left knee disability aggravated his right knee disability beyond the natural progress of the disease. In that regard, the degree of aggravation is not relevant. Therefore, service connection is warranted. 38 C.F.R. § 3.310. Severance of Service Connection Following the Veteran’s left knee arthroplasty in March 2011, he was assigned a 100 percent rating pursuant to DC 5055, contemplating total knee replacements. He was then assigned a 30 percent rating since May 1, 2012, also under DC 5055. The RO later discontinued the Veteran’s pre-arthroplasty left knee ratings under DC 5257, DC 5261, and DC 5260 and contemplating laxity of the knee and limitation of flexion and extension, effective March 1, 2014. The RO explained in the December 2013 rating decision that it had neglected to sever these ratings in March 2011, but was required to sever them pursuant to the rating criteria. Therefore, the continuance of those ratings constituted clear and unmistakable error. The Board finds that the RO’s severance of service connection for the Veteran’s left knee laxity, left knee arthritis with limitation of flexion, and left knee arthritis with limitation of extension, effective March 1, 2014, was proper. Specifically, DC 5055 contemplates the symptomatology following left knee replacement, to include residuals such as laxity and limitation of motion. In other words, the assignment of a separate ratings was essentially compensating the Veteran twice for symptoms that were already contemplated in the rating under DC 5055. The evaluation of the same manifestations under several diagnostic codes, known as pyramiding, must be avoided. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Finally, the Board finds that notice of the intent to sever service connection was proper. The Veteran was notified of the proposed severance in October 2013, but did not request a hearing on the matter or provide further evidence or argument that would question the severance. The severance occurred 60 days following the last day of the month in which the Veteran received notice of final severance. The question of whether the Veteran is entitled to an increased rating for his left knee disability pursuant to DC 5055 is a separate issue on appeal, and is addressed in the remand portion of this decision. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Limitation of flexion of the knee is evaluated under DC 5260. A 10 percent rating is warranted under DC 5260 where flexion is limited to 45 degrees, a 20 percent rating is available where flexion is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention 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; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’ “as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). Turning to the evidence of record, on April 2008 VA examination, the Veteran reported having continuous daily pain in the left knee that was an average intensity of 9 out of 10. He obtained only mild relief with naproxen. He did not use a cane for support, but used a brace occasionally. He noticed swelling approximately every three days. Physical examination revealed mild bony swelling and deformity. The joint was mildly subjectively tender over its medial aspect. He was able to flex his knee to 55 degrees with pain at 45 degrees. The examiner found that there was functional limitation at 45 degrees of flexion. Results of repetitive use testing revealed that active and passive ranges of motion were unaffected by repetition and there was no further functional limitation due to fatigue, incoordination or flare-ups. The examiner noted that the Veteran had a moderate to severe limp favoring the left leg and a slow gait. At the April 2010 hearing, the Veteran testified that his left knee pain was a 9, that he had trouble walking, and that he had to hold onto railings when going downstairs. He reported that he was unable to garden because he could not bend down and had to keep his leg straight. He reported that he had instant pain when he started to bend his knee, that pain caused him to have trouble sleeping, and that by the end of the day he had less functional use of the knee, with pain and swelling. Hearing Tr. at 3, 7-9, 11-14. February 2011 VA X-ray results reflect the Veteran had a clinical history of flexion limited to 45 degrees. In December 2010, the Veteran’s left knee flexion was to 110 degrees with pain and crepitus. There was no effusion. A March 2011 VA treatment record, prior to the Veteran’s total knee arthroplasty, reflects flexion of the left knee was to 70 degrees with pain. A December 2012 VA treatment record indicates that flexion was within full limits, although it does not provide a specific endpoint for flexion motion. On May 2013 VA examination, the Veteran reported that his left knee was not painful anymore. Physical examination revealed flexion to 90 degrees with no objective evidence of painful motion. The Veteran was able to do repetitive use testing to 90 degrees of flexion with no functional loss. He regularly used a cane. At the September 2014 hearing, the Veteran reported that prior to March 1, 2014 he was unable to flex his left knee very far and that he had trouble walking. The above described evidence does not reflect limitation of flexion to 30 degrees. As described above, flexion was at most shown to be limited to 45 degrees, with consideration of the Veteran’s reports of pain and functional loss. The AOJ assigned the Veteran a 10 percent rating for limitation of flexion on this basis. The record does not otherwise reflect findings that more nearly approximate flexion limited to 30 degrees. In fact, other than the flexion noted on April 2008 VA examination, prior to March 1, 2014, the Veteran’s flexion was at most shown to be limited to 70 degrees with pain. Even when considering the Veteran’s pain, this evidence does not more nearly approximate a finding of flexion limited to 30 degrees. The Board has also considered the Veteran’s lay statements that limitation of flexion of the left knee is worse than currently evaluated. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of limitation of flexion of the Veteran’s left knee has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated and take into consideration the Veteran’s lay statements regarding pain and functional loss. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology. Thus, the Veteran is not entitled to a higher 20 percent rating for limitation of flexion under Code 5260 prior to March 1, 2014. The Board has considered whether any other DCs may be applicable. The Board notes that the February 2011 Board decision decided whether the Veteran was entitled to higher initial ratings based on limitation of extension (DC 5261) and instability (DC 5257) of the left knee. Since that decision is final, the Board will not address entitlement to a higher initial rating under either DC 5257 or 5261. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1100. The Board further finds that DC 5256 (ankylosis of the knee), 5258 (dislocated semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran had any of those conditions prior to March 1, 2014. DC 5259 provides for a 10 percent rating where removal of semilunar cartilage is symptomatic. Although the record reflects the Veteran underwent a partial medial meniscectomy and arthroscopy of the left knee in February 2006, the symptoms experienced by the Veteran as a result of that surgery have been reflected by instability and limitation of motion with pain, swelling, and effusion. Prior to March 1, 2014, the Veteran was receiving separate ratings under the applicable DCs for these symptoms; therefore, providing him with a separate rating under DC 5259 would be pyramiding as the symptomatology that would be used to evaluate the Veteran under DC 5259 overlaps with the symptomatology already used to evaluate his left knee disabilities under DCs 5257, 5260, and 5261 prior to March 1, 2014. 38 C.F.R. § 4.14. Additionally, DC 5259 would not provide the Veteran with a rating in excess of 20 percent as it provides for a maximum 10 percent rating. Therefore, DC 5259 does not allow for a higher rating than the 20 percent rating currently assigned under DC 5260 for limitation of flexion. The Board has also considered whether any staged rating is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds that evidence regarding limitation of flexion has been consistent with the assigned rating prior to March 1, 2014. The record does not indicate any significant increase or decrease in the Veteran’s limitation of flexion during the appeal period and symptoms warranting a higher rating have not been shown. Accordingly, staged ratings are not warranted for the Veteran’s left knee disability based on limitation of flexion. REASONS FOR REMAND A remand is indicated to determine the current nature and severity of the Veteran’s right and left knee disabilities and the resultant functional impairment on employment. The most recent VA examinations were completed in 2015. Since then, in March 2018, the Veteran notified the Board that he had undergone right knee surgery at the VA in April 2017. Therefore, and when considering that the Veteran has been awarded service connection for his right knee disability by this decision, additional VA treatment records and a new VA examination should be obtained to determine the current severity of the knees. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left and right knee disabilities alone and discuss the effect of the Veteran’s left and right knee disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Following the above development, and in light of the complex procedural history, the RO should readjudicate the following issues: a) entitlement to an increased rating for a left knee disability status post total knee replacement under DC 5055 since May 1, 2012, and b) entitlement to a TDIU throughout the appeal period, beginning in April 2006, to include consideration on a schedular or extraschedular basis. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Erdheim, Counsel