Citation Nr: 18148950 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 10-35 507 DATE: November 8, 2018 ORDER Prior to February 21, 2017, a rating in excess of 20 percent for osteoarthritis of the left knee is denied. From February 21, 2017, to March 31, 2018, a rating of 100 percent for total left knee arthroplasty is granted, subject to the laws and regulations governing the payment of monetary benefits. As of April 1, 2018, a rating of 30 percent, but no higher, for status-post total left knee replacement is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to February 21, 2017, the Veteran’s osteoarthritis of the left knee was manifested by flexion limited to, at most, 80 degrees and extension limited to, at most, 15 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without recurrent subluxation or lateral instability, ankylosis, impairment of the tibia and fibula, or genu recurvatum. 2. Prior to February 21, 2017, the Veteran’s left knee meniscus symptomatology, including frequent episodes of locking, joint pain, and joint effusion, and residual symptoms of pain, swelling, and stiffness from his past meniscectomy is contemplated in his current 20 percent rating assigned for his osteoarthritis. 3. On February 21, 2017, the Veteran underwent a total left knee arthroplasty, requiring a month of convalescence. 4. As of April 1, 2018, the Veteran’s status-post total left knee arthroplasty did not result in chronic residuals consisting of severe painful motion or weakness, or ankylosis, extension limited to 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, or nonunion of the tibia and fibula with loose motion and requirement of a brace. CONCLUSIONS OF LAW 1. Prior to February 21, 2017, the criteria for a rating in excess of 20 percent for osteoarthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 2. From February 21, 2017, to March 31, 2018, the criteria for a rating of 100 percent for total left knee arthroplasty have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.30, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 3. As of April 1, 2018, the criteria for a rating of 30 percent, but no higher, for status-post total left knee arthroplasty have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in May 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Veteran testified at a RO hearing before a Decision Review Officer (DRO). In March 2014 and November 2016, the Board remanded the issue on appeal for further development and, in September 2017 in order to afford the Veteran his requested Board hearing. Thereafter, in January 2018, he testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the record. A September 2018 rating decision denied entitlement to a temporary total evaluation based on a left total knee arthroplasty. As such matter is part and parcel of the Veteran’s appeal currently before the Board, the Board has assumed jurisdiction over such issue. Furthermore, a review of the record indicates that the Agency of Original Jurisdiction (AOJ) has reviewed all evidence referable to the instant claim before the Board, to include as noted in the September 2018 rating decision, and, therefore, the Board may proceed with a decision at this time. 38 C.F.R. § 20.1304(c). Entitlement to a rating in excess of 20 percent for osteoarthritis of the left knee. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the U.S. Court of Appeals for Veterans Claims held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. For a 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. The words slight, moderate, and severe are not defined in the Rating Schedule. 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 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. VA’s General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that, if an appellant does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Diagnostic Code 5257), a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Specifically, 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 need not be compensable, but must at least meet the criteria for a zero-percent rating. Id. VA’s General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004). The Veteran’s increased rating claim was received in March 2009, and as such, the Board will consider the evidence dated on and after March 2008. 38 C.F.R. § 3.400. Throughout the pendency of the appeal, the Veteran’s left knee disability is rated as 20 percent disabling under Diagnostic Code 5261 based on limitation of extension. Upon review of the evidence of record, the Board finds the criteria for a rating in excess of 20 percent for limitation of extension are not met prior to February 21, 2017. In this regard, extension must be limited to 20 degrees for a higher rating; however, the record reflects that the Veteran’s extension has been limited to, at most, 15 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Specifically, on VA examination in April 2009, extension was limited to 15 degrees, and a January 2010 physical examination report reflects extension limited to five degrees. In August 2011, the Veteran had full extension of his left knee and, after repetitive testing in May 2014, extension was limited to five degrees. Similarly, on VA examination in December 2016, extension was limited to five degrees. Consequently, a rating in excess of 20 percent under Diagnostic Code 5261 is not warranted. The Board further finds a higher or separate rating for limitation of flexion is not warranted under Diagnostic Code 5260 prior to February 21, 2017, as the Veteran’s left knee disability did not result in limitation of flexion to 60 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Specifically, on VA examination in April 2009, flexion was limited to 105 degrees. In March 2010 and July 2011, the Veteran had flexion to 135 and 120 degrees, respectively. However, on VA examination in August 2011, he had flexion to 130 degrees, but pain started at 90 degrees. Similarly, at the May 2014 VA examination, the Veteran’s left flexion was to 100 degrees, but pain started at 80 degrees. However, at the December 2016 VA examination, he had flexion to 130 degrees. Consequently, a higher or separate rating under Diagnostic Code 5260 is not warranted. The Board has also considered whether a higher or separate rating is warranted under Diagnostic Code 5257 pertinent to recurrent subluxation or lateral instability. In this regard, although the Veteran reported instability and subluxation on VA examination in April 2009 and at his July 2011 DRO hearing, physical examination at such time revealed no evidence of patellar abnormality or instability. Furthermore, a November 2009 MRI revealed that the Veteran’s ligaments were intact and, on examination in August 2011, May 2014, and December 2016, joint stability testing was normal and there was no evidence or history of recurrent patellar subluxation/dislocation. In this regard, while the Veteran is competent describe feelings of instability and subluxation, he is not competent to relate such symptoms to a diagnosis of recurrent subluxation or lateral instability. In this regard, there is no indication that he possesses the requisite knowledge to administer or interpret specialized testing that would reveal subluxation or instability. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, the VA examiners, who have the training to conduct and interpret patellar and ligament testing, found that there was no subluxation or laxity in the left knee. Consequently, the Board finds that a higher or separate rating under Diagnostic Code 5257 is not warranted. The Board notes that the evidence reflects that the Veteran underwent a left knee meniscectomy in April 1967, and a November 2009 MRI revealed numerous current tears of the meniscus of the left knee. Therefore, the Board has considered the applicability of Diagnostic Codes 5258 and 5259. Specifically, under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Additionally, under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. In the instant case, while a March 2010 record showed no recurrent effusion or locking and the August 2011 VA examination only showed frequent episodes of joint pain, the May 2014 VA examination revealed a meniscal tear with frequent episodes of joint “locking,” pain, and effusion, and residuals of the Veteran’s meniscectomy included pain, swelling, and stiffness. However, the Board finds that, to assign separate ratings under Diagnostic Code 5258 and/or 5259 would be tantamount to pyramiding as the Veteran would be compensated twice for the same symptomatology. See 38 C.F.R. § 4.14; Esteban, supra. In this regard, the Veteran’s mensicus symptomatology includes frequent episodes of locking, pain, and effusion as well as residual symptoms of pain, swelling, and stiffness from his meniscectomy. Under Diagnostic Code 5258, such requires frequent episodes of “locking,” pain, and effusion into the joint. However, such symptomatology results in functional impairment of limited motion. In this regard, locking may result in limitation of motion, i.e., the inability to fully extend or flex the knee due to a locked joint, or instability. Furthermore, pain and effusion may also limit the Veteran’s range of knee motion pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59. Specifically, 38 C.F.R. § 4.45 indicates that, with respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. (Emphasis added). Furthermore, under Diagnostic Code 5259, the criteria is based on symptomatic residuals, which in plain language, means the Veteran reports residuals. There are no objective findings required other than the removal of the cartilage. However, in the instant case, the Veteran’s residual symptoms include pain, swelling, and stiffness, which is considered in the evaluation assigned under Diagnostic Code 5261. Moreover, pursuant to VAOPGCPREC 9-98, limitation of motion is contemplated in Diagnostic Code 5259, pertinent to the removal of the semilunar cartilage or meniscus. The opinion finds that such removal may resolve restriction of movement caused by tears and displacements of the menisci; however, the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, the opinion states that limitation of motion is a relevant consideration under Diagnostic Code 5259. Therefore, based on the foregoing, the Board finds that separate ratings under Diagnostic Codes 5258 and 5259 are not warranted. Similarly, as there is no evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum, Diagnostic Codes 5256, 5262, and 5263 are not for application. Therefore, based on the foregoing, the Board finds that a rating in excess of 20 percent for the Veteran’s left knee disability prior to February 21, 2017, is not warranted. However, as of February 21, 2017, the record reflects that the Veteran underwent a total left knee arthroplasty. In this regard, the Board finds that he is entitled to a temporary total evaluation of 1 month following such surgery in light of the necessary convalescence. 38 C.F.R. § 4.30(a)(1). Moreover, pursuant to Diagnostic Code 5055, which governs the evaluation of knee replacements, he is then entitled to 100 percent rating for one year following the implementation of the prosthesis. See e.g., Note (1). Consequently, the Board finds that the Veteran is entitled to a 100 percent rating from February 21, 2017, to March 31, 2018. As of April 1, 2018, the end-date for the assignment of the 100 percent rating, the Board finds a 30 percent rating is warranted under Diagnostic Code 5055 for status-post total left knee arthroplasty. Under Diagnostic Code 5055, a minimum rating of 30 percent may be assigned. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is assigned by analogy to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is warranted when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Upon review, the Board finds a rating in excess of the minimum 30 percent assignable under Diagnostic Code 5055 is not warranted. Although an August 2018 VA examination report shows the Veteran had symptoms of pain and lack of endurance, the VA examiner found such residuals were of an intermediate degree. Accordingly, a higher rating could be assigned by analogy to Diagnostic Codes 5256, 5261, or 5262. However, the medical evidence does not reflect ankylosis of the left knee, and extension was to zero degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Additionally, the evidence does not demonstrate nonunion of the tibia and fibula with loose motion and requirement of a brace. As a result, a rating in excess of the minimum 30 percent is not assignable by analogy. The Board also notes that, as a result of the Veteran’s total left knee arthroplasty, he has a scar; however, such is asymptomatic and not of a size to warrant a compensable rating. Therefore, a separate rating for such residual scar is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds a rating in excess of 20 percent for the Veteran’s service-connected left knee disability is not warranted prior to February 21, 2017; a 100 percent rating is warranted from February 21, 2017, to March 31, 2018; and a 30 percent rating is warranted as of April 1, 2018. To the extent the Board has denied any aspect of the Veteran’s claim, the preponderance of the evidence is against the assignment of higher or separate ratings. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and such aspect of the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel