Citation Nr: 18147810 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-44 783 DATE: November 6, 2018 ORDER Entitlement to a disability evaluation in excess of 30 percent for left total knee replacement is denied. FINDING OF FACT The Veteran’s left knee disability is not productive of severe painful motion or weakness in the affected extremity, ankylosis, extension limited to 30 degrees, or impairment of the tibia and fibula. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for a left total knee replacement have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active military duty from June 1955 to July 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs Regional Office (RO). The Veteran filed a notice of disagreement in May 2016 and a statement of the case was issued in August 2017. The Veteran filed a VA Form-9 in August 2017 and elected not to have an optional Board hearing. Entitlement to an increased rating for left knee total replacement The Veteran seeks an increased rating higher than 30 percent from June 1, 2016, for his left knee total replacement. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. §1155; 38 C.F.R. §4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7. When an already established service-connected disability is being evaluated, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (“functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded”); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Under DC 5257, a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent disability rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71(a), DC 5257. Under DC 5260, limitation of flexion of the leg to 60 degrees warrants a noncompensable rating; limitation to 45 degrees warrants a 10 percent rating; limitation to 30 degrees warrants a 20 percent rating; and limitation to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71(a), DC 5260. Under DC 5261, limitation of extension of the leg to 5 degrees warrants a noncompensable rating; limitation to 10 degrees warrants a 10 percent rating; limitation to 15 degrees warrants a 20 percent rating; limitation to 20 degrees warrants a 30 percent rating; limitation to 30 degrees warrants a 40 percent rating; and limitation to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71(a), DC 5261. The normal range of motion for the knee is to 140 degrees in flexion, and 0 degrees in extension. 38 C.F.R. § 4.71, Plate II. VA General Counsel has issued separate precedential opinions holding that a Veteran also may be assigned separate ratings for X-ray evidence of arthritis with noncompensable or painful limitation of motion, or limitation of motion under DC 5260 or 5261, and for instability under DC 5257 or 5259. VAOPGCPREC 23-97; VAOPGCPREC 9-98; See also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. DC 5003 is employed when rating degenerative arthritis. According to DC 5003, degenerative arthritis (hypertrophic or osteoarthritis) when established by X-ray findings is rated on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71(a), DC 5003. Total knee replacement is rated under 38 C.F.R. § 4.71(a), DC 5055 as a knee replacement with prosthesis. Under DC 5055, a 100 percent rating is assigned for one year following implantation of a knee prosthesis for a service-connected knee disability, followed thereafter by a 60 percent rating when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to DCs 5256, 5261, and 5262. The minimum rating is 30 percent under DC 5055. 38 C.F.R. § 4.71(a), DC 5055. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with the consideration of the possibility that different ratings may be warranted for different time periods. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence that is of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107B. In a June 2015 rating decision, a temporary 100 percent evaluation was assigned for the left knee, effective April 6, 2015, based on a total knee replacement; a 30 percent rating was assigned, effective June 2016. The Veteran underwent a total knee replacement in April 2015. See April 2015 private treatment records. The Veteran’s medical record includes a private physician’s letter from March 2016 indicating that the Veteran had a total knee replacement in April 2015 and has now completed physical therapy for rehabilitation of his left knee. The physician noted that the Veteran will remain disabled due to his left knee and the decreased range of motion. The Veteran was provided with a VA knee examination in July 2017 where the Veteran reported that his condition has gotten worse due to increased pain and more difficulty going up and down the stairs. He stated that he used to run but cannot do that anymore. The pain wakes him up at night. He said he had gotten better after surgery but recently has gotten worse. The Veteran indicated that the flare ups can be described as decreased range of motion, happening 3-4 times a week with yard work, lasting one hour, and stopping after activity. The Veteran reported that he has difficulty bending his left leg and has flare-ups. He has stiffness with prolonged walking and decreased bending ability. Range of motion testing showed flexion from 0 to 60 degrees and extension from 60 to 0 degrees. No pain was noted on the exam. There was mild TTP in the anterior knee. The Veteran was able to perform repetitive use testing with at least three repetitions that did not cause additional loss of function or range of motion. The examination was not being conducted during a flare up, and the examiner noted that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare ups. The examiner noted that the Veteran was observed seated comfortably with the knee flexed to at least 90 degrees with no objective evidence of pain or discomfort. Muscle strength testing was normal. The Veteran did not have muscle atrophy. There was no ankylosis, recurrent subluxation, or lateral instability. The Veteran did not have a meniscus condition. A scar on the anterior knee measuring 16 centimeters by .2 centimeters was noted by the examiner. No assistive devices were used. Imaging studies of the knee did not show traumatic arthritis. The examiner noted that the Veteran had no difficulty getting up from the chair, on and off the exam table, lying in supine position, or rising. He was able to heel-toe tandem walk with some difficulty. The left knee passive range of motion testing was not performed as it was not medically appropriate because of active resistance with passive range of motion. There was no evidence of pain on non-weight bearing testing of the left knee. As mentioned above, the Veteran underwent a left knee total replacement surgery in April 2015 and was assigned a total rating from that date until June 1, 2016. Accordingly, that period is not for consideration. In this case, for the period after June 1, 2016, the Board discerns no significant difference in either the number of symptoms or types of symptoms due to the Veteran’s left knee disability. With the foregoing in mind, and in light of the most recent VA examination conducted in July 2017, the Board finds that as the Veteran’s record has not established that he has chronic residuals consisting of severe painful motion or weakness, he is not entitled to the next higher evaluation of 60 percent under DC 5055. Of particular significance is that the July 2017 VA examiner noted no objective evidence of pain or discomfort. The Board acknowledges the Veteran’s reports of increased pain in his left knee. The Veteran is competent to report observable symptoms such as instability of the knee. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay evidence has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Again, in this case, there is no objective evidence showing severe painful motion or weakness. The Board has considered whether the Veteran would be entitled to a higher or separate rating under schedular rating under DCs 5003 and 5256-5263. However, the Veteran’s record does not show ankylosis, subluxation, lateral instability, symptomatic removal of cartilage, impairment of tibia or fibula, or genu recurvatum. Additionally, the Veteran’s flexion and extension of his left knee was shown to be from 0 to 60 degrees at the July 2017 VA examination, which would not warrant a compensable rating under DCs 5260 and 6261. The Board acknowledges the private physician’s letter from March 2016 noting decreased range of motion in the Veteran’s left knee. However, the private physician did not provide specific values for range of motion testing in the left knee. As such, the Board is not able to award a separate rating for the left knee based on this statement under the schedular rating criteria. The Board recognizes that the Veteran has chronic left knee pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree to warrant a rating in excess of the current 30 percent. At the VA examinations, the examiner found that there was no additional weakness, fatigability, discoordination, additional restricted range of motion, or functional impairment following repetitive use. Moreover, again, pain was no observed. Further, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, does not itself constitute functional loss. Mitchell v. Shinseki, No. 09-2169, 2011 WL 3672294, at 4 (Vet. App. Aug. 23, 2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. In this case, it does not. Therefore, a rating in excess of 30 percent is not warranted based on limitation of motion.   Accordingly, the Board finds that the Veteran’s left knee total replacement is adequately compensated by a 30 percent rating under DC 5055. Therefore, a preponderance of the evidence is against a rating in excess of 30 percent for the left knee. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel