Citation Nr: 18141440 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-18 785 DATE: October 10, 2018 ORDER The claim for entitlement to an increased rating in excess of 30 percent for the Veteran’s already service-connected left knee disability is dismissed. The claim for entitlement to an increased rating in excess of 20 percent for the Veteran’s already service-connected left shoulder disability is dismissed. For the appellate period prior to November 9, 2017, a disability rating of 60 percent, but no greater, for the Veteran’s service-connected right knee disability, status post total right knee replacement, is granted. From November 9, 2017 forward, a rating in excess of 60 percent for the Veteran’s service-connected right knee disability, status post total right knee replacement, is denied. FINDINGS OF FACT 1. During an April 2018 hearing before the undersigned, the Veteran, through his representative, expressed his satisfaction with the disability ratings assigned for his left knee and left shoulder and a desire to withdraw those claims on appeal. 2. For the appellate period prior to November 9, 2017, the Veteran’s residuals of a total right knee replacement was manifested by chronic residual symptoms of severe painful motion and weakness. 3. The Veteran’s total right knee replacement did not exhibit such diminished function that the Veteran would be equally served by amputation at any time during the course of the appeal. CONCLUSIONS OF LAW 1. The criteria for dismissal for higher disability ratings for the Veteran’s service connected left knee disability by the Veteran (or his authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for a rating of 60 percent for the Veteran’s service-connected right knee disability, status post total right knee replacement, prior to November 9, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2017). 3. The criteria for entitlement to an increased rating in excess of 60 percent for the Veteran’s service-connected right knee disability, status post total right knee replacement, from November 9, 2017 forward has not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code 5055 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the U.S. Army from April 1975 to February 1988. During this time, he was awarded the Armed Forces Expeditionary Medal, the National Defense Service Medal, the Overseas Service Ribbon, and the Army Service Ribbon. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA regional office (RO) in Waco, Texas. In April 2018, the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans’ Law Judge. A transcript of that hearing has been reviewed and associated with the claims file. In an August 2018 letter from the RO, the Veteran was provided an opportunity to participate in VA’s Rapid Appeals Modernization Program (RAMP). See August 2018 RAMP Opt-In Notice. On September 1, 2018, the Veteran elected to participate in RAMP, selecting the option for “Higher-Level Review.” See September 2018 RAMP Opt-In Election. However, appeals that have been activated by the Board are not eligible for RAMP processing. The issues listed on the front page of this decision were activated by the Board in August 2018, prior to the Veteran’s decision to participate in RAMP. The Veteran was subsequently notified of the RAMP determination via a VA letter sent to him shortly thereafter. See September 2018 Correspondence. Therefore, the Board will continue with the adjudication of the issues listed on the front page of this decision pursuant to current appeals procedures. Withdrawn Issues The Board notes that the Veteran originally appealed the RO’s April 2013 denial of his claim for increased ratings in excess of 30 percent for his already service-connected left knee disability, and in excess of 20 percent for his already service-connected left shoulder disability. At the Veteran’s April 2018 Board Hearing, the Veteran’s representative indicated that, “[t]he Veteran is satisfied with those particular ratings on those issues.” See April 2018 Board Hearing Transcript. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, through his authorized representative, expressed satisfaction with the ratings assigned his service-connected left knee and left shoulder disabilities and his desire to withdraw those claims on appeal. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these specific claims, and they are dismissed. Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations 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. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 C.F.R. § 3.400(o)(2). The Board must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that the pain “must actually affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance’ [under] 38 C.F.R. § 4.40 in order to constitute functional loss” warranting a higher rating). Moreover, when the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Additionally, with any form of arthritis, painful motion is an important factor of disability. 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. 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. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Diagnostic Codes (DCs) relevant to knee disabilities include 5003, 5010, and 5256 through 5263. Under Diagnostic Codes 5003 and 5010, arthritis established by x-ray findings is rated on the basis of limitation of motion of the affected joints. When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5055 provides ratings for knee replacements. Under Diagnostic Code 5055, for one year following implantation of a knee prosthesis for a service-connected knee disability, a 100 percent rating is assigned. Thereafter, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity; or, a minimum 30 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5055. When there are intermediate degrees of residual weakness, pain, or limitation of motion, these intermediate residuals are to be rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, or 5262. Diagnostic Code 5256, which evaluates ankylosis of the knee, assigns a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. 38 C.F.R. § 4.71a, DC 5256. Under Diagnostic Code 5257, other knee impairment is evaluated based upon recurrent subluxation and/or lateral instability. This Diagnostic Code provides that a 10 percent disability rating is warranted for slight disability, a 20 percent rating is warranted for moderate disability, and a maximum 30 percent evaluation is warranted for severe disability. 38 C.F.R. § 4.71a. See also Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (holding that DC 5257 is not predicated on loss of range of motion). The words “slight,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 5258 provides for assignment of a 20 percent rating for dislocation of the semilunar cartilage, with frequent episodes of “locking,” pain and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides for the assignment of a single 10 percent rating for removal of the semilunar cartilage, symptomatic. Id. Diagnostic Code 5260 pertains to limitation of leg flexion, and provides for a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating requires flexion limited to 45 degrees; a 20 percent rating requires flexion limited to 30 degrees; and the highest available 30 percent rating requires flexion limited to 15 degrees. Id. Also, Diagnostic Code 5261 provides that limitation of motion of the knee will be assigned a noncompensable rating when extension is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees; a 20 percent rating requires extension limited to 15 degrees; a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a maximum 50 percent rating is assigned when extension is limited to 45 degrees. Id. Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. VA’s Office of General Counsel determined that separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violation of the rule against pyramiding (at 38 C.F.R. § 4.14), regardless of whether the limited motions are from the same or different causes. VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004). Moreover, VAOPGCPREC 23-97 held that a claimant may receive separate disability ratings for arthritis and instability of the knee, under Diagnostic Codes 5003 and 5257, respectively. See VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997). In order for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 does not have to be compensable, but must meet the criteria for a zero-percent rating. VAOPGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56,704 (1998). Entitlement to an increased rating for a right knee disability in excess of 30 percent prior to November 9, 2017, and in excess of 60 percent from November 9, 2017 forward. After a careful review of the evidence of record and resolving all doubt in favor of the Veteran, the Board finds that, for the appellate period prior to November 9, 2017, the Veteran’s right knee replacement residuals more nearly approximates the criteria for a 60 percent disability rating under Diagnostic Code 5055, as his right knee disability post total knee replacement has been primarily productive of chronic residuals consisting of severe painful motion, chronic weakness, and associated functional loss. Specifically, the probative evidence of record, including VA medical records and the Veteran’s March 2013, December 2015, and January 2017 VA knee examinations, reflects that for the appellate period prior to November 9, 2017, the Veteran’s right knee disability has been manifested by chronic residuals of knee replacement consisting of severe painful motion with associated functional loss in the affected extremity. The Veteran’s VA and private treatment records as well as VA examinations reflect consistent findings of severe, chronic right knee pain and weakness. See, e.g., March 2013 2013 VA Knee and Lower Leg Disability Benefits Questionnaire (DBQ) (reflecting that the Veteran had weakened movement, pain on movement in his right knee and had to regularly wear knee braces for support); August 2013 Metroplex Hospital Operative Report (detailing the patellar arthroplasty surgery undertaken to replace the Veteran’s right knee patella button); September 2013 Integrity Rehab & Home Health Daily Note (recording that the Veteran recently fell); November 2013 Integrity Rehab & Home Health Physical Therapy Note (noting that the Veteran fell again); December 2015 VA Knee and Lower Leg DBQ (classifying the Veteran’s right knee muscle strength as 3 out of 5 on flexion, 2 out of 5 on extension, and noting that the Veteran uses a knee brace and a cane constantly); January 2016 Olin Teague Veteran Center Primary Care Physician Note (noting that the Veteran fell twice or more in the past 12 months due to his knees giving out); August 2016 Scott & White Medical Center Progress Note (indicating that the Veteran is still falling due to his right knee condition and recording his pain level as a 7 out of 10); January 2017 VA Knee and Lower Leg DBQ (noting that the Veteran wears a right knee brace and uses a cane for support constantly, that his right knee couldn’t fully straightened and is painful); August 2017 Scott & White Medical Center Orthopedic Surgery Consult Note (reflecting the Veteran fell out of bed, could not fully extend his right knee, and that he wears a knee brace to address a history of knee instability). The Board notes that while Diagnostic Code 5055 specifies that a minimum 30 percent rating is assigned or when there are intermediate degrees of residual weakness, pain, or limitation of motion the disability is to be rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 (knee ankylosis), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula), no such rating by analogy is applied when there is evidence of chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 60 percent rating is the maximum rating available under Diagnostic Code 5055, and Diagnostic Codes 5256, 5261, and 5262 do not provide for any higher ratings. The maximum ratings available under these codes are 60 percent, 50 percent, and 40 percent, respectively. As the maximum rating under the diagnostic codes pertaining to the knee has been granted for appellate period prior to November 9, 2017, and because Diagnostic Code 5055 specifically addresses limitation of motion, there is no legal basis for further consideration of 38 C.F.R. §§ 4.40 and 4.45. Johnston, 10 Vet. App. at 85 (consideration of 38 C.F.R. §§ 4.40 and 4.45 is unnecessary where an appellant is in receipt of the maximum rating for limitation of motion). Furthermore, as noted previously, there is a general rule against the “pyramiding” of benefits. See 38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 203, 206 (1993). However, the Board acknowledges that a Veteran is potentially entitled to separate disability ratings for different manifestations of the same disability when the symptomatology of one manifestation is not duplicative or overlapping of the symptomatology of the other manifestations. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997) (holding that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (degenerative arthritis) and 5257 (recurrent subluxation or lateral instability of the knee), respectively); VAOPGCPREC 9-98, 63 Fed. Reg. 56703 (1998) (further explaining that, to warrant a separate rating, the limitation of motion need not be compensable under Diagnostic Code 5260 (limitation of flexion) or 5261 (limitation of extension); rather, such limited motion must at least meet the criteria for a 0 percent rating); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004) (holding that a separate rating could also be provided for limitation of knee extension and flexion). Per the Board’s decision, the Veteran is now in receipt of a 60 percent evaluation for the appellate period prior to November 9, 2017. Here, the Board notes that with the favorable award of 60 percent for the right knee for the appellate prior to November 9, 2017, any potential assignment of separate disability ratings for the right knee is precluded as a matter of law, in light of the “amputation rule” which provides that the combined rating for disabilities of an extremity cannot exceed the rating for amputation at the elective level. 38 C.F.R. § 4.68. As applicable to the current claim, a 60 percent disability rating is assigned if there was an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71a, Diagnostic Code 5162. Amputation of a leg with defective stump and thigh amputation recommended or amputation not improvable by prosthesis controlled by natural knee action may also be assigned a 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Codes 5163 and 5164. Thus, considering the “amputation rule” pursuant to 38 C.F.R. § 4.68 and 38 C.F.R. § 4.71a, Diagnostic Codes 5161, 5162-5164, a 60 percent disability rating would be the maximum assignable disability rating for the Veteran’s right knee disability; thus, separate disability ratings under additional Diagnostic Codes applicable to the knee, including 5257, 5260 and 5261, are not available for the appellate period prior to November 9, 2017. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As a result of the RO’s December 2017 rating decision, the Veteran is already in receipt of a 60 percent evaluation for his total right knee replacement from November 9, 2017 forward. Regarding the Veteran’s claim for an increased rating in excess of 60 percent for his right knee disability from November 9, 2017 forward, by virtue of the “amputation rule” as discussed above, a higher evaluation is not assignable. The Board further notes that the relevant evidence of record does not reflect that at any time during the appellate period the Veteran exhibited functional loss of his right knee post total knee replacement to such an extent that he would have been equally served by amputation. See, e.g., March 2013 VA Knee and Lower Leg DBQ; December 2015 VA knee and Lower Leg DBQ; January 2017 VA Knee and Lower Leg DBQ; November 2017 VA Knee and Lower Leg DBQ. Accordingly, as a matter of law, a disability rating in excess of the current 60 percent rating for the Veteran’s right knee disability post right knee replacement is not assignable. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly,   a disability rating in excess of 60 percent for the Veteran’s residuals of a total knee replacement are not meet at anytime during the course of the appeal. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel