Citation Nr: 18142175 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 16-19 198 DATE: October 15, 2018 ORDER Entitlement to an effective date prior to February 28, 2011 for the assignment of a 60 percent disability rating for service-connected left knee disability is denied. FINDING OF FACT For the period prior to February 28, 2011, the record does not reflect it was factually ascertainable the Veteran met or nearly approximated the criteria for a 60 percent rating for his service-connected left knee disability with scar. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to February 28, 2011 for the assignment of a 60 percent disability rating for service-connected left knee disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400, 4.124a, Diagnostic Codes (DCs) 5055, 5260-5259, 7800-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1966 to June 1970 and from July 1972 to July 1974. By way of historical background, a July 2013 rating decision awarded a 60 percent rating for the Veteran’s service-connected left knee disability, effective February 28, 2011. In the October 2013 VA Form 9, the Veteran argued that the effective date assigned for the 60 percent rating should be from the date of his December 20, 2006 claim for increased rating. The Board construed the Veteran’s October 2013 statement as a timely Notice of Disagreement with the effective date assigned for the 60 percent rating in the July 2013 rating decision. Accordingly, in the May 2015 Board remand, the issue was recharacterized accordingly and remanded for the issuance of a Statement of the Case. 1. Entitlement to an effective date prior to February 28, 2011 for the assignment of a 60 percent disability rating for service-connected left knee disability. In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(1). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under § 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, “the only cognizable ‘increase’ for this purpose is one to the next disability level” provided by law for the particular disability). In VAOPGCPREC 12-98, VA’s General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred; that this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. The United States Court of Appeals for Veterans Claims, in Hazan, noted that 38 U.S.C. § 5110(b)(2) required a review of all the evidence of record (not just evidence not previously considered) as to the disability in order to ascertain the earliest possible effective date. Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Hazan, 10 Vet. App. at 521. While the Veteran submitted his claim for an increased rating for his left knee disability in December 2006, his 60 percent disability rating was assigned an effective date of February 28, 2011. The Veteran contends the RO omitted pertinent evidence and misinterpreted other evidence which would have confirmed an effective date of December 2006 for the assignment of the 60 percent disability rating for his service-connected left knee disability. See VA 9. Accordingly, the Board must determine it was factually ascertainable that the Veteran’s left knee disability warranted a rating of 60 percent from a year before the date of his claim up until February 28, 2011. In determining whether the Veteran satisfied the criteria for at least a 60 percent rating for his service-connected left knee disability for the one-year period prior to December 20, 2006, the Board notes the Veteran’s left total knee arthroplasty with scar associated with post-operative lateral meniscotomy is rated under Diagnostic Code 5055. Pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Normal range of motion of the knee is from 0 degrees of extension (leg in straight line from hip to heel) to 140 degrees of flexion (leg bent with heel near posterior thigh). See 38 C.F.R. § 4.71a, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, a noncompensable rating is warranted where knee flexion is limited to 60 degrees, a 10 percent rating is warranted where knee flexion is limited to 45 degrees, a 20 percent rating is warranted where knee flexion is limited to 30 degrees, and a 30 percent rating is warranted where knee flexion is limited to 15 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261 a noncompensable rating is warranted where knee extension is limited to 5 degrees, a 10 percent rating is warranted where knee extension is limited to 10 degrees, a 20 percent rating is warranted where knee extension is limited to 15 degrees, a 30 percent rating is warranted where knee extension is limited to 20 degrees, a 40 percent rating is warranted where knee extension is limited to 30 degrees, and a 50 percent rating is warranted where knee extension is limited to 45 degrees. Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). 38 C.F.R. § 4.71a, DC 5256 provides for a 30 percent rating (and even higher ratings) for ankyloses of a knee in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). According to DC 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability, a 10 percent rating is assigned with evidence of slight recurrent subluxation or lateral instability of a knee; 20 percent rating is assigned with evidence of moderate recurrent subluxation or lateral instability; and 30 percent rating is assigned with evidence of severe recurrent subluxation or lateral instability. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under DC 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). 38 C.F.R. § 4.71a, DC 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. Thus, if there are symptoms as a residual of a meniscectomy (partial removal of semilunar cartilage in the knee) which are subluxation or instability, or limitation of motion, separate ratings for such manifestation may be assigned. However, 38 C.F.R. § 4.71a, DC 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. A locked knee is “a condition in which the knee lacks full extension and flexion because of internal derangement, usually the result of a torn meniscus.” http://medical-dictionary.thefreedictionary.com/locked+knee. Thus, locking encompasses limitation of motion such that assigning additional and separate rating for limited knee flexion or extension under, respectively, DCs 5260 or 5261 would constitute pyramiding under 38 C.F.R. § 4.14 and, as such, is prohibited. See VAOPGCPRECs 23-99 and 9-93. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, without objective functional loss, does not require that a higher rating be assigned. The assignment of highest rating for pain without other objective findings would lead to potentially ‘absurd results‘. Id. at 43. In a September 2007 statement from the Veteran, he reported suffering from moderate to severe pain in the knee almost all the time, unless he was in a reclined position. Walking caused increased pain in the knee. Additionally, sitting for periods of time caused pain and stiffness that resulted in immobility when he stood up. While he was taking medication for the pain, it only made the pain a “tolerable” level. See statement. Private treatment records show the Veteran continued to complain of knee pain and had steroid injections for treatment. Significant osteoarthritis along with narrowing of the lateral joint space was noted. See records. A December 2007 VA treatment notation reported the Veteran favored his right leg in an attempt to offload the left knee pain. His range of motion was full extension to about 100 degrees of flexion. A curvy linear incision over the anterolateral aspect of his knee was documented. Arthritic changes in the lateral compartment as well as medial and patellofemoral compartment were found but his overall alignment was normal. A knee replacement was recommended. See CAPRI. The Veteran underwent a left total knee arthroplasty in June 2008. See CAPRI. Following his surgery, VA treatment records show continued left knee pain. An October 2009 VA orthopedic notation showed no erythema, no effusion and a range of motion to 90 degrees. The Veteran’s knee was stable to varus and valgus stress. He also had normal strength, normal sensation and brisk capillary refill. In February 2010, the Veteran described the pain as radiating in nature as well as dully and achy. It occurred daily and was worse when he walked on uneven surfaces. He took ibuprofen for pain daily but provided little relief. His range of motion was 95 degrees flexion and was overall very stable. There was mild swelling in his lower extremity and mild tenderness to palpation along the lateral aspect of the knee. See CAPRI. Thereafter, the June 2011 VA examination reported that flare-ups were caused by walking on uneven ground and stairs. The Veteran had stiffness and swelling along with constant moderately severe left knee pain. Range of motion testing showed flexion to 77 degrees with normal extension. See examination. Another VA examination was performed in November 2011. At that examination, the Veteran did not report any flare-ups. Left knee flexion was 85 degrees with painful motion at 65 degrees. Left knee extension ended at 10 degrees with painful motion. Additional functional loss including less movement than normal, incoordination, and pain on movement were noted. Pain to palpation for joint line was noted as well but the Veteran maintained normal strength, normal stability, and no evidence of recurrent patellar subluxation or dislocation. He did have a meniscal tear with frequent episodes of locking and joint pain. He also had a total knee joint replacement in June 2008 with chronic residuals consisting of severe painful motion and weakness. His scar was not painful or unstable and was not greater than 39 square centimeters. See examination. In reviewing the evidence from the pertinent period, the Board acknowledges that in his June 2013 statement, the Veteran contended the need for his total knee replacement showed the severity of his knee condition at the time of his claim until his surgery in 2008. He noted also that he took various pain medications and performed different exercises prior to the replacement. See statement. While the Board is sympathetic to the Veteran’s contentions, the medical evidence of record does not indicate any findings that would support a 60 percent disability rating prior to February 28, 2011. Thus, an earlier effective date is not warranted. Specifically, for the entire period at issue, the Veteran maintained flexion greater than 60 degrees (which supports a noncompensable rating) and extension that ranged from normal to 10 degrees (which supports a 10 percent disability rating). Moreover, there is no evidence the Veteran’s left knee had ankylosis, subluxation, lateral instability, or a dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint, to warrant disability ratings under Diagnostic Codes 5256, 5257, or 5258. Additionally, the evidence of record shows the Veteran underwent lateral meniscectomy surgery in June 2008. Therefore, a rating pursuant to Diagnostic Code 5055 would not be applicable for the period before the surgery, as the rating code addresses the chronic residuals of the replacement of the knee joint. Instead, prior to June 2008, the Veteran has been assigned a 10 percent rating (the only rating available) under Diagnostic Code 5259 for symptomatic residuals of removal of a semilunar cartilage. For the period following the Veteran’s 100 percent disability rating, where he has been assigned a 30 percent rating under Diagnostic Code 5055 for his left knee disability, while there is evidence of the Veteran’s lay reports of continued pain, the medical evidence supporting the finding of chronic severe painful motion or weakness is not exhibited until the November 2011 VA examination. The Board also does not find the Veteran is entitlement to a rating of 60 percent based on additional functional loss. While the Veteran exhibited functional loss including less movement than normal, incoordination and pain on movement, these factors do not result in functional loss that equates to a rating of 60 percent at any time during the period at issue. Lastly, regarding scar residuals, a rating of 60 percent is also not warranted. Under Diagnostic Code 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. A 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. Id. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. Id. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. Id. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. VA is to consider unretouched color photographs when evaluating under these criteria. Id. at Note 3. Additionally, VA is to separately evaluate disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the evaluation(s) with the evaluation assigned under Diagnostic Code 7800. Id. at Note 4. Finally, the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics that are required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Id. at Note 5. Diagnostic Code 7801 applies to burn scars or scars due to other causes, not of the head, face, or neck that are deep and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one that is associated with underlying soft tissue damage. Id. at Note 1. Diagnostic Code 7802 pertains to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one that is not associated with underlying soft tissue damage. Id. at Note 1. Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Additionally, scars that are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804 when applicable. Id. at Note 3. According to Diagnostic Code 7805, which applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, VA is to evaluate any disabling effect(s) not considered in a rating provided under such Diagnostic Codes under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. The report from the November 2011 VA examination revealed a left knee surgical scar. The scar was not located on the head, neck or face, was not painful or unstable and was found not to cover an area measuring 39 square centimeters (6 square inches) or greater to cause disfigurement. Accordingly, the Board finds that a rating of 60 percent is not warranted under Diagnostic Codes 7800-7805. See 38 C.F.R. § 4.118. In this case, the Board also notes that a thorough review of the evidence of record for the one year period prior to December 20, 2006 does not include any findings regarding the Veteran’s service-connected left knee disability with scar that exhibit the requisite symptomatology necessary for a 60 percent disability rating for either disability. As such, the Board must find it was not factually ascertainable during this relevant period that such a rating was warranted. Thus, an effective date earlier than February 28, 2011 for the assignment of a 60 percent disability rating is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel