Citation Nr: 18145533 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-28 929A DATE: October 29, 2018 ORDER An initial rating for right knee instability higher than 20 percent prior to January 6, 2017 is denied. An initial rating higher than 10 percent for degenerative arthritis of the right knee prior to January 6, 2017 is denied. A separate 20 percent rating for episodes of right knee pain, locking, and effusion into the joint is granted from August 5, 2006 to January 6, 2017. REMANDED Entitlement to an initial rating higher than 30 percent for residuals of a total right knee replacement from March 1, 2018 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities is remanded. FINDINGS OF FACT 1. Prior to January 6, 2017, when the Veteran underwent a total right knee replacement, his instability of the right knee was not severe. 2. Prior to January 6, 2017, when the Veteran underwent a total right knee replacement, his arthritis of the right knee was not manifested by flexion limited to 45 degrees or less, or extension limited to 10 degrees or less. 3. From August 5, 2006 to January 6, 2017, the Veteran’s right knee disability has been manifested by chronic pain, episodes of locking, and swelling and effusion into the joint, with history of a partial meniscectomy. CONCLUSIONS OF LAW 1. The criteria for an initial rating for right knee instability higher than 20 percent prior to January 6, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2017). 2. The criteria for an initial rating higher than 10 percent for degenerative arthritis of the right knee prior to January 6, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes 5010-5260 (2017). 3. The criteria for a separate 20 percent rating for frequent episodes of locking, pain, and effusion into the joint are satisfied from August 5, 2006 to January 6, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5258 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to October 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested to testify at a hearing before the Board in his August 2014 substantive appeal (VA Form 9), but subsequently withdrew the request in a June 2018 letter submitted through his representative. The Veteran has perfected other appeals to the Board, but these have not yet been docketed. They will be addressed in docket order. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 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 (2017). 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 disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Generally, the degrees of disability 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. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. 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. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. An initial rating for right knee instability higher than 20 percent prior to January 6, 2017, the date of a total knee replacement, is denied. The Veteran underwent a total right knee replacement on January 6, 2007. The RO assigned a 100 percent rating from that date through February 28, 2017. Effective March 1, 2017, a 30 percent rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055 for residuals of the total knee replacement, which replaced the prior separate ratings for instability and arthritis of the knee. The issue of whether the criteria for a rating higher than 30 percent for residuals of the right knee replacement have been satisfied is addressed in the REMAND section below. Rating Criteria The Veteran’s right knee instability prior to January 6, 2017 has been rated under DC 5257, which pertains to other impairment of the knee, recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Under DC 5257, a 10 percent rating is assigned for slight instability, a 20 percent rating for moderate instability, and a 30 percent rating for severe instability. Id. Analysis The preponderance of the evidence shows that the Veteran’s right knee instability has not been severe prior to January 6, 2017. VA treatment records dated in April 2010 reflects that the Veteran had periods of right knee instability that resulted in a fall. On examination, there was no laxity. The May 2010 VA examination report shows that on examination, there was moderate subluxation. Ligament stability testing results were abnormal and showed moderate instability. The October 2012 VA examination report reflects that the Veteran reported occasional buckling of the right knee. On examination, there was no subluxation. The examiner indicated that anterior and posterior stability tests were normal. The examiner was unable to test for medial-lateral instability. An August 2014 VA treatment record reflects examination findings of mild laxity. The above evidence shows that the Veteran’s right knee instability has been found on examination to be moderate or mild in nature. These findings are probative, as they represent the conclusions of medical professionals based on examination of the Veteran. The Veteran has not described, and the evidence does not otherwise show, a more severe degree of instability or subluxation. Accordingly, the Veteran’s right knee instability has not more nearly approximated the criteria for a 30 percent rating under DC 5257, which requires severe subluxation or instability. See 38 C.F.R. § 4.71a. Rather, it more nearly approximates moderate instability. Because the preponderance of the evidence weighs against a higher rating, the benefit-of-the-doubt rule does not apply. See 38 C.F.R. §§ 3.102, 4.3. 2. An initial rating higher than 10 percent for degenerative arthritis of the right knee prior to January 6, 2017, the date of a total knee replacement, is denied. The Veteran underwent a total right knee replacement on January 6, 2007. The RO assigned a 100 percent rating from that date through February 28, 2017. Effective March 1, 2017, a 30 percent rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055 for residuals of the total knee replacement, which replaced the prior separate ratings for instability and arthritis of the knee. The issue of whether the criteria for a rating higher than 30 percent for residuals of the right knee replacement have been satisfied is addressed in the REMAND section below. Rating Criteria The Veteran’s right knee arthritis has been rated under DC 5010-5260 for traumatic arthritis manifested by limitation of flexion. 38 C.F.R. § 4.71a; see 38 C.F.R. § 4.27 (2017 (use of diagnostic code numbers). Under DC 5010, traumatic arthritis is to be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that arthritis of a joint is to be evaluated under the diagnostic codes pertaining to limited motion applicable to the specific joint involved. Id. If not compensable under the appropriate diagnostic code, then a 10 percent rating is to be assigned based on limitation of motion. In the absence of limitation of motion, when there is X-ray evidence of involvement of 2 or more major joints, or 2 or more minor joint groups, a 20 percent rating is assigned for arthritis with occasional incapacitating exacerbations, and 10 percent rating assigned for arthritis with no incapacitating exacerbations. Id. The diagnostic codes pertaining to range of motion of the knee are DC 5260 (flexion of the knee) and DC 5261 (extension of the knee). 38 C.F.R. § 4.71a. Under DC 5260, a 0 percent disability rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent disability rating is assigned when flexion is limited to 45 degrees; a 20 percent disability rating is assigned when flexion is limited to 30 degrees; and a 30 percent disability rating is assigned when flexion is limited to 15 degrees. Id. Under DC 5261, a 0 percent disability rating is assigned for extension limited to 5 degrees; a 10 percent disability rating is assigned for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. Id. Separate ratings may be assigned for limitation of flexion and limitation of extension for disability of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2017). These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the provisions of 4.40 and 4.45 are not subsumed by the DC’s applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Analysis The VA treatment record and examination reports show that on examination, the Veteran’s right knee flexion has not been limited to 60 degrees or lower, and right knee extension not limited to 10 degrees or higher, including on repeat testing. The examination reports do not show that pain, weakness, fatigability, or other factors further reduced or affected range of motion to the point of satisfying the criteria for compensable ratings under DC 5260 or 5261. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Board notes that the May 2010 VA examination report reflects that the Veteran reported flare ups precipitated by physical activity that occurred as often as one time per day and lasted for twenty-four hours. The pain level at these times was a 9 out of 10 in severity. At those times, he was unable to walk any distance, or bear any weight. They flare ups were alleviated with medication, rest, elevation, and ice. As discussed below, the Board is assigning a separate 20 percent rating based on evidence of chronic pain, locking, and effusion into the joint. See 38 C.F.R. § 4.71a, DC 5258. The evidence is insufficient to show that the Veteran had further limitation of motion of the joint during flare ups that lasted long enough to warrant a higher staged rating. At the May 2010 VA examination report, by stating that he had flare ups one time per day that lasted twenty-four hours, he was essentially stating that his knee was always in such a state. The VA treatment records do not show that the Veteran generally had to use a wheelchair or lie down due to right knee pain, as would be indicated by the statement that his flare-ups occurred on a daily basis and lasted twenty-four hours. He denied flare ups at the April 2014 VA examination. An April 2015 addendum opinion also states that the Veteran did not report flare ups that significantly limited functional ability. The Board finds that the record is not sufficient to assign a higher rating based on limitation of motion during flare-ups at any point during the period under review. Accordingly, the preponderance of the evidence weighs against a rating higher than 10 percent for arthritis of the right knee. Consequently, the benefit-of-the-doubt rule does not apply. See 38 C.F.R. §§ 3.102, 4.3. 3. A separate rating of 20 percent is granted for right knee pain, locking, and effusion into the joint effective from August 5, 2006 to January 6, 2017. The Board finds that from August 5, 2006 (the effective date of service connection for the Veteran’s right knee disability) to January 6, 2017 (the date of the knee replacement) a separate 20 percent rating is warranted under 38 C.F.R. § 4,71a, DC 5258, which pertains to dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. See Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017) (holding that the evaluation of knee disability under DC 5257 or 5261 does not preclude, as a matter of law, separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259). By way of background, the Veteran underwent a partial meniscectomy in the early 1980’s. See October 2012 VA Examination Report; May 2017 VA Examination Report; April 2006 VA MRI (showing truncated appearance of posterior horn of medial meniscus consistent with history of resection). The record shows that as early as February 2005, the Veteran had a lot of pain and swelling of the knee, and reported that it catches once in a while. The clinician noted that this was probably a tear of the remaining rim of the medial meniscus. In a September 2007 statement, the Veteran reported right knee pain, clicking, and locking. An October 2009 VA treatment record reflects the Veteran’s complaint of chronic right knee pain at a level 6. A January 2010 VA treatment record reflects that X-ray findings, as explained in a letter to the Veteran, showed chondrocalcinosis of the menisci, which was a condition caused by the presence of calcium salts in the joint, and could cause inflammation resulting in pain. VA treatment records dated in April 2010 VA show that the Veteran’s knee was edematous with warmth. Subtle effusion was noted. The Veteran reported locking and effusion at the May 2010 VA examination. The October 2012 VA treatment record reflects that the Veteran reported frequent episodes of joint effusion, and pain. A March 2014 VA x-ray study showed joint effusion. See April 2014 VA Examination Report. The May 2017 VA examination report also notes chronic swelling of the right knee. In sum, the Veteran’s statements, in conjunction with the objective clinical findings summarized above, constitute competent, credible, and probative evidence of chronic right knee pain with episodes of locking and effusion into the joint, including in association to his past meniscal condition. The Board finds that these manifestations are sufficiently close to the criteria under DC 5258 to warrant a 20 percent rating under that diagnostic code. See 38 C.F.R. § 4.21 (2017) (providing that in application of the rating schedule, it is not expected that “all cases will show all the findings specified”). Although the Veteran has not been diagnosed with a dislocated meniscus (i.e. “semilunar” cartilage), the Board finds DC 5258 to be the most closely analogous diagnostic code for these manifestations, which are not otherwise contemplated by DC’s 5257 and 5260. See 38 C.F.R. § 4.20 (2017) (providing that unlisted conditions may be rated by analogy under a closely related disease or injury); cf. Lyles v. Shulkin, 29 Vet. App. 115 (2017) (holding that DC’s 5257 and 5261 do not compensate for the manifestations described in DC’s 5258 and 5259). REASONS FOR REMAND 1. The issue of entitlement to an initial rating for right knee instability higher than 20 percent prior to January 6, 2017 is remanded. The RO has not issued a statement of the case regarding the evaluation of the Veteran’s right knee disability following the January 6, 2017 total right knee replacement. Further, a May 2017 VA examination report is not sufficient for the Board to make an informed decision, as the examiner stated that an opinion could not be provided regarding additional loss of motion during flare-ups, without further explanation. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). 2. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities is remanded. The determination of entitlement to TDIU is dependent on the outcome of the other claims pending before the Board, and may also be affected by further development of the Veteran’s right knee claim. Accordingly, the Board will not address this issue at this time. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on the resolution of the second issue). The matters are REMANDED for the following action: 1. Arrange for a new VA examination of the Veteran’s right knee to evaluate the current severity of the total right knee replacement residuals. If the Veteran endorses flare ups, the examiner must elicit from him as much information as possible regarding the severity, frequency, and duration of flare ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare up, the examiner must provide an estimate of additional loss of range of motion during a flare up. If the examiner is unable to provide such an estimate, the examiner must explain why the available information of record, including the Veteran’s own statements, is not sufficient for that purpose. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rutkin, Counsel