Citation Nr: 18151231 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 09-30 889 DATE: November 19, 2018 ORDER Prior to February 13, 2008, entitlement to a disability rating in excess of 20 percent under Diagnostic Code 5010-5260 for degenerative joint disease of the right knee with limitation of flexion is denied. Prior to February 13, 2008, entitlement to a separate disability rating of 20 percent, but not higher, under Diagnostic Code 5261 for degenerative joint disease of the right knee with limitation of extension is granted. Prior to February 13, 2008, entitlement to a separate disability rating of 10 percent, but not higher, under Diagnostic Code 5257 for degenerative joint disease of the right knee with instability is granted. From April 1, 2009, to July 30, 2018, entitlement to a disability rating of 60 percent, but not higher, under Diagnostic Code 5055 for a total right knee replacement is granted. From July 31, 2018, forward, entitlement to a disability rating in excess of 60 percent under Diagnostic Code 5055 for a total right knee replacement is denied. FINDINGS OF FACTS 1. Prior to February 13, 2008, the Veteran’s right knee degenerative joint disease was manifested at worst by painful and limited motion from 15 degrees to 90 degrees and by mild instability. 2. From April 1, 2009, forward, the Veteran’s total right knee replacement has been manifested by chronic residuals consisting of severe painful motion or weakness. CONCLUSIONS OF LAW 1. Prior to February 13, 2008, the criteria for a disability rating in excess of 20 percent for degenerative joint disease of the right knee with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260 (2017). 2. Prior to February 13, 2008, the criteria for a disability rating of 20 percent, but not higher, for degenerative joint disease of the right knee with limitation of extension have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2017). 3. Prior to February 13, 2008, the criteria for a disability rating of 10 percent, but not higher, for degenerative joint disease of the right knee with instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.71a, Diagnostic Code 5257 (2017). 4. From April 1, 2009, to July 30, 2018, the criteria for a rating of 60 percent, but not higher, for right total knee replacement have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5055 (2017). 5. From July 31, 2018, forward, the criteria for a rating in excess of 60 percent for right total knee replacement have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5055 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to February 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office(RO) in Cleveland, Ohio. In July 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board remanded these claims for further development in December 2012 and April 2018. These issues now return for appellate review. The Veteran also perfected an appeal of the following issues: entitlement to an initial disability rating in excess of 30 percent prior to July 6, 2012, and to a disability rating in excess of 50 percent from July 6, 2012, forward, for a major depressive disorder; entitlement to an initial disability rating in excess of 10 percent prior to August 4, 2010, and to a disability rating in excess of 20 percent from August 4, 2010, forward, for degenerative joint disease of the lumbar spine; entitlement to an effective date prior to April 22, 2009, for the award of service connection for degenerative joint disease of the lumbar spine; and the issue of whether additional benefits as school children for R.H., C.B., and J.B. are warranted. See RO Rating Decision, dated in July 2013; Statement of the Case, dated September 27, 2017; Letter from the RO to the Veteran, dated December 12, 2017, with attached VA Form 9. At present, he is awaiting the scheduling of a hearing before the Board on these claims. See VA Form 9, dated December 11, 2017. The Veteran also perfected an appeal of an August 2018 rating decision concerning the issues of entitlement to an earlier effective date prior to June 24, 2010 for the award of a total disability rating based upon individual unemployability and Dependents' Educational Assistance under 38 U.S.C. Chapter 35. However, these claims have not yet been certified to the Board. See 38 C.F.R. §§ 19.36, 20.1304(a). As such, all of these claims will be addressed in a separate Board decision. Increased Rating As a preliminary matter, the Board notes that in December 2007 the Veteran submitted a claim for an increased rating for his service-connected traumatic degenerative joint disease of the right knee rated as 20 percent disabling. He underwent a right total knee replacement on February 13, 2008. As a result, in April 2008 the RO granted an evaluation of 100 percent for a right total knee replacement effective February 13, 2008. Thereafter, an evaluation of 30 percent was assigned from April 1, 2009, to July 30, 2018 and an evaluation of 60 percent was assigned from July 31, 2018, forward. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and the residual conditions. 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 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. Id.; § 4.3. In every instance where the schedule does not provide a zero percent evaluation for a DC, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. Id.; § 4.31. A veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. However, the present level of the disability is of primary concern where the issue is entitlement to an increase in the rating for a disability for which service connection has already been established. See Francisco v. Brown, 7 Vet. App. 55 (1994). In such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and painful joints are entitled to at least the minimum compensable rating for the joint. 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). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Entitlement to an evaluation in excess of 20 percent prior to February 13, 2008, for degenerative joint disease of the right knee. Prior to his right total knee replacement on February 13, 2008, the Veteran’s right knee degenerative joint disease was evaluated as 20 percent disabling under Diagnostic Code 5010-5260. Diagnostic Codes (DCs) relevant to knee disabilities include 5003, 5010, and 5256 through 5263. Applicable here, 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 non-compensable 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. 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 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. 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. 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). Turning to the evidence prior to February 13, 2008, a VA treatment record dated in May 2007 shows that the Veteran complained of right knee pain. It was noted that he was going to need a knee replacement. His knee was stiff and he had an antalgic gait. On evaluation by orthopedics in June 2007, range of motion of the Veteran’s right knee was limited from 5 to 105 degrees. There was also some laxity of the knee with valgus stressing. Range of motion in the right knee was from 0 to 100 degrees with pain in July 2007. In September 2007, range of motion of the right knee was from 5 to 105 degrees, with pain and crepitus. On February 6, 2008, the Veteran’s right knee had range of motion from 15 to 90 degrees, in flexion contracture, with crepitus and pain. There was no anterior posterior medial/lateral laxity and no posterior/anterior laxity. On the day of his right knee replacement surgery, February 13, 2008, the Veteran had range of motion from 10 to 95 degrees, with 10 degrees of flexion contracture. There was no mediolateral laxity and no anteroposterior laxity. To warrant the next higher rating of 30 percent under DC 5260, the evidence must show flexion limited to 15 degrees. At worst, the Veteran’s right knee flexion was limited to 90 degrees which does not meet the criteria for a noncompensable rating, let alone warrant a rating in excess of 20 percent. See 38 C.F.R. § 4.71a, DC 5260. The Board acknowledges that the Veteran's right knee disability is, however, productive of additional functional limitation beyond what is reflected in his range of motion measurements. Specifically, the record reflects reports of chronic pain, stiffness and an antalgic gait. These associated functional limitations, however, are contemplated by the 20 percent rating currently assigned under DC 5260, especially considering that his limitation of flexion had not risen to even a noncompensable (0 percent) level prior to February 13, 2008. See 38 C.F.R. §§ 4.40, 4.45; see also Mitchell, 25 Vet. App. at 42-43; DeLuca, 8 Vet. App. at 206-07. Thus, since the Veteran's 20 percent rating under DC 5010-5260 recognized that his knee joint was affected by arthritis productive of painful movement and resulting in additional limitation of motion on repeated use and associated functional impairment including as due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness, a rating in excess of 20 percent is not warranted under DC 5260. At worst, the Veteran had limitation of extension of the right knee to 15 degrees which meets the criteria for a 20 percent rating under DC 5261. To warrant the next higher rating of 30 percent under DC 5261, the evidence must show extension limited to 20 degrees which has not been demonstrated. The Veteran's symptoms of chronic pain and other functional loss are already contemplated in his 20 percent rating under DC 5260. The Veteran cannot receive a higher rating under DC 5261 based upon his pain and functional loss as this would result in compensating the Veteran twice for the same manifestations of his knee disability. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). As such, a separate 20 percent rating, but not higher, is warranted for limited extension of the right knee under DC 5261. Further, the Veteran was shown to have some laxity of the right knee with valgus stressing in June 2007. Accordingly, the Board finds that a separate 10 percent rating is warranted under DC 5257 for slight instability of the right knee. There were no complaints or findings of moderate instability of the knee. To the contrary, on February 6 and 13, 2008, there was no anterior posterior medial/lateral laxity and no posterior/anterior laxity and no mediolateral laxity and no anteroposterior laxity. Therefore, a separate 10 percent rating, but not higher, is warranted for slight instability of the right knee under DC 5257. 2. Entitlement to an evaluation in excess of 30 percent from April 1, 2009, through July 30, 2018, and in excess of 60 percent from July 31, 2018, forward, for a total right knee replacement. The Veteran underwent a right total knee replacement on February 13, 2008, and was rated under Diagnostic Code 5055. He was assigned an evaluation of 100 percent effective February 13, 2008. An evaluation of 30 percent was assigned from April 1, 2009 to July 30, 2018, and an evaluation of 60 percent was assigned from July 31, 2018, forward. Under DC 5055, a 100 percent rating is provided for one year following implantation of prosthesis. After one year, a minimum 30 percent rating is provided. A maximum 60 percent is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. In addition, intermediate degrees of residual weakness, pain, or limitation of motion may be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. VA treatment records dated in May 2009 showed that the Veteran had right knee range of motion from 6 to 96 degrees and 4/5 strength. He had pain and an altered gait. In February 2010, the Veteran complained of knee pain at 6/10, with the worst being 8/10. He stated that if he walked any distance his knee would buckle and tended to lock. He had range of motion from 5 to 91 degrees, and knee strength was 3/5. In October 2010, it was noted that the Veteran fell when his right knee gave out. Subsequent VA treatment records show continuing and consistent complaints of right knee pain, ranging from 6-8/10, increased with activity and not completely relived with rest, as well as an abnormal gait. In January 2014, range of motion of the right knee was from 0 to 80 degrees and the examiner assessed persistent pain. More recently, the Veteran received a VA examination in March 2016. The Veteran reported that his right knee gives out and buckles once a week, and he falls once a month. He stated his right knee pain ranges between five and eight on a scale of zero to 10. He reported having trouble going down stairs and weekly flare-ups consisting of increased pain and stiffness that occur when going up steps or during prolonged walking, standing, and sitting. Initial range of motion measurements showed flexion from 0 to 80 degrees and extension from 80 to 0 degrees. The examiner noted that the Veteran’s decreased flexion affected knee function when engaged in physical activity involving the knees. The examiner found no evidence of pain with weightbearing, no evidence of localized tenderness or pain on palpation, and no evidence of crepitus. No additional functional loss or range of motion after repetitive-use testing was found. The Veteran’s right knee was not examined after repetitive use over time or during a flare-up, but the examiner found the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time or during a flare-up. The examiner could not comment on whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or during a flare-up without speculating. Muscle strength testing was normal. No muscle atrophy was found. No ankylosis was found. No recurrent subluxation, lateral instability, or recurrent effusion was found. The examiner found a leg length discrepancy that causes the Veteran bilateral knee pain that was due to his bilateral knee replacements but could not comment without speculating to separate how much pain was caused by each knee. Residuals of the Veteran’s total replacement of the right knee included pain, stiffness, and a decreased range of motion. The examiner did not find chronic residuals consisting of severe painful motion or weakness. It was noted the Veteran occasionally used a cane, walker, and TENS unit as assistive devices. Based on the above, the Board finds that a rating of 60 percent under Diagnostic Code 5055 is warranted for the Veteran’s right total knee replacement from April 1, 2009 to July 30, 2018. VA treatment records showed consistent complaints of right knee pain with severity as high as 8/10, as well as reports of buckling and findings of limited motion, reduced strength, and an altered gait. The March 2016 examiner did not find severe painful motion or weakness in the affected extremity. However, the March 2016 examination report does suggest chronic residuals consisting of severe painful motion or weakness. For example, the Veteran reported his right knee gives out and buckles once a week, and he falls once a month. He also stated his right knee pain ranges up to an eight on a scale of zero to 10. Furthermore, the examiner did not comment on the additional functional loss in range of motion during repeated use or flare-ups because to do so would be mere speculation; however, it is unclear why the examiner could not make estimations based on the Veteran’s statements of how he experiences his symptoms. The Board finds the evidence reflects “severe” pain or weakness as contemplated by the 60 percent rating criteria. Therefore, a 60 percent rating is warranted under Diagnostic Code 5055. In short, the Board finds that a rating of 60 percent under Diagnostic Code 5055 is warranted as of April 1, 2009. Concerning entitlement to a higher rating from that date forward, Diagnostic Code 5055 does not provide for a schedular rating in excess of 60 percent, other than a 100 percent rating for the one-year period following implantation of prosthesis. Therefore, there is no basis in the law for awarding a schedular rating in excess of 60 percent for the disability under Diagnostic Code 5055. (Continued on the next page)   Additionally, as a matter of law the Veteran cannot receive a disability rating in excess of 60 percent due to the “amputation rule”. The amputation rule note provides, in relevant part, that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were the amputation to be performed. See 38 C.F.R. § 4.68. As amputation of a lower level of the leg with defective stump, thigh amputation recommended; or not improvable by prosthesis controlled by natural knee action warrants a 60 percent evaluation, the Veteran cannot be compensated in excess of a 60 percent rating for his right knee disability. See 38 C.F.R. §§ 4.68, 4.71a, DCs 5163 and 5164; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit). As such, entitlement to a disability rating in excess of 60 percent for right total knee replacement, from April 1, 2009, forward, is denied. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck