Citation Nr: 18155485 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 13-02 481 DATE: December 4, 2018 ORDER Entitlement to a rating in excess of 30 percent for a post-total knee replacement (TKR) right knee disability prior to January 27, 2014 is denied. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to the post-TKR right knee disability, is remanded. FINDING OF FACT Prior to January 27, 2014, the Veteran’s post-TKR right knee disability was manifested by complaints of pain, stiffness, swelling, edema, and buckling (once or twice per month); extension was normal, the knee was not ankylosed, nonunion of tibia or fibula was not shown, and a preponderance of the evidence is against a finding of chronic residuals consisting of severe painful motion and weakness. CONCLUSION OF LAW A rating in excess of 30 percent for the Veteran’s post-TKR right knee disability prior to January 27, 2014 is not warranted. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.68, 4.71a; Diagnostic Codes (Codes) 5055, 5256, 5261, 5262. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from May 1969 to February 1973 and from January 1974 to January 1977. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision which reopened and denied a claim of service connection for a left knee disability and continued a 30 percent rating for a post-TKR right knee disability. An August 2017 Board decision denied service connection for a left knee disability, denied an increase in the 30 percent rating assigned to the post-TKR right knee disability prior to January 27, 2014, and granted a 60 percent for the post-TKR right knee disability from January 27, 2014. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a May 2018 Joint Motion for Partial Remand (JMPR) by the parties. A May 2018 CAVC Order remanded the matter for compliance with the JMPR instructions. [The Veteran did not appeal the 60 percent rating assigned for the post-TKR right knee disability from January 27, 2014, and that matter is no longer before the Board.] Since then, the Board has received additional evidence and argument from the Veteran, submitted with a waiver of Agency of Original Jurisdiction (AOJ) initial consideration. [The Board’s August 2017 decision found that entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) was raised by the record in the claim for increase. The Board remanded the matters of entitlement to a TDIU rating and service connection for lymphedema for additional development. The Board acknowledges the Veteran’s attorney’s argument that the matter of entitlement to a TDIU rating is part and parcel of the instant claim for increase. However, a review of the record found that development on both matters, and particularly the claim for a TDIU rating, is ongoing at the AOJ. Notably, as recently as on November 20, 2018, the AOJ requested information from the Veteran and two of his reported previous employers regarding his work history; such information is pertinent and necessary for proper adjudication of the matter. As development is ongoing, and the AOJ has not yet adjudicated either of the matters remanded in August 2017, they are not before the Board.] A rating in excess of 30 percent for a post-TKR right knee disability prior to January 27, 2014 is denied. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). “Staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Post-TKR knee disability is rated under Code 5055. A 100 percent rating is to be assigned for 1 year following implantation of a prosthesis. Following expiration of the 1-year period, a 30 percent rating is the minimum rating to be assigned. A 60 percent [maximum schedular] rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Codes 5256 (for ankylosis), 5261 (for limitation of extension), or 5262 (for impairment of the tibia and fibula). 38 C.F.R. § 4.71a. A total (schedular for post-TKR) rating was assigned for the Veteran’s right knee disability from March 30, 2010 through April 31, 2011 (prior to the period for consideration). The current 30 percent rating was assigned to follow the expiration of that 1-year period. Under Code 5256, a 30 percent rating is assigned for ankylosis of a knee at a favorable angle (in full extension), or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is assigned for ankylosis of a knee between 20 degrees and 45 degrees. A 60 percent rating is assigned for extremely unfavorable ankylosis of a knee (in flexion at 45 degrees or more). 38 C.F.R. § 4.71a. Under Code 5261, limitation of extension of a leg warrants a 30 percent rating when limited at 20 degrees, a 40 percent rating when limited at 30 degrees, and a (maximum) 50 percent rating when limited at 45 degrees. 38 C.F.R. § 4.71a. Under Code 5262, for impairment of the tibia and fibula, a 30 percent rating is assigned for malunion with marked knee or ankle disability, and a (maximum) 40 percent rating is assigned for nonunion with loose motion requiring a brace. 38 C.F.R. § 4.71a. Normal or full range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may be assigned for compensable limitations of motion, instability, and dislocation of semilunar cartilage. VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59990 (2004). Ratings for extremities are also governed by 38 C.F.R. § 4.68 (the amputation rule), which provides that the combined rating for disabilities of an extremity shall not exceed the rating for amputation of the extremity at the elective level, were amputation to be performed. Under Code 5162, amputation of a leg at the middle or lower third of the thigh is rated 60 percent. The next higher (80 percent) rating (under Code 5161) requires that the elective site of amputation be at the upper third of the thigh, one-third of the distance from perineum to the knee joint measured from the perineum. 38 C.F.R. § 4.71a. In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. 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. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. §§ 3.157, 3.400(o)(2). Consequently, the evaluation period for consideration here is from December 2011 (a year prior to the December 4, 2012 date of claim) to January 27, 2014. Factual Background As noted above, the Veteran underwent right TKR surgery in March 2010; a 30 percent (minimum schedular) rating was assigned under Code 5055 from May 1, 2011. A November 4, 2011 VA clinical record regarding the Veteran’s right knee notes, “He has some pain in it off and on. It hurts at times, swells at times, sometimes it feels a little unstable.” The record notes diagnoses of fibromyalgia, multiple somatic complaints, type 2 diabetes, peripheral neuropathy in both legs, hyperlipidemia, and hypertension.” A November 18, 2011 VA clinical record notes a report of “some knee pain”; the extremity, severity, and frequency were not identified. A March 2012 VA rheumatology record notes that, “R[ight] tkr is starting to hurt.” A May 23, 2012 VA clinical record notes complaints of right knee pain. On examination, the surgical scar was well-healed; there was no erythema or drainage. The knee was “a little loose” with good range of motion which was smooth. X-rays showed no evidence of infection or loosening. The impression was painful right total knee arthroplasty. A July 20, 2012 VA clinical record notes complaints of right knee pain; the knee was evaluated for evidence of loosening or infection. The physician wrote, “There was no evidence of loosening or infection in the right total knee arthroplasty… The right total knee appears to be okay. His x-rays look good also.” The physician also noted that the Veteran “hurts all over” and was “having total body pain…Possibly he has some sort of generalized inflammatory polyarthritis.” An August 2012 VA clinical record notes the Veteran’s report of bilateral knee pain. He reported that his knees were “really hurting” because he ran out of Celebrex and muscle balm rub. A November 2012 VA rheumatology record notes complaints of “Lately has lots of pain, has to walk with a walker.” On examination, the Veteran’s “knees [were] tender, but not red.” The physician noted that he “will likely need tkr’s at some point, but he is not ready for it.” In a December 4, 2012 statement, the Veteran reported that his right knee disability manifests with limited range of motion, pain, and swelling. He reported using a walker, cane, and braces. He also reported falling and limitations in his daily activities. A December 11, 2012 “1-time basis” private physical therapy record notes complaints of bilateral knee pain, rated 8/10, and a report of a fall due to his left knee giving out. On examination, right knee active range of motion was extension to 0 degrees (full) and flexion to 95 degrees (with passive flexion to 115 degrees). The Veteran did not report pain or tenderness to palpation along the anterior joint, posterolateral joint, and posteromedial joint lines. The record notes “1=Complaint of pain” on the lateral joint line, medial joint line, and popliteal posse; palpation to the pes anserine resulted in “2=Pain with wincing.” A February 2013 medical statement from Dr. R.L.J, the Veteran’s private TKR surgeon, noted that he is “doing very well” with his right total knee replacement. A May 8, 2013 VA clinical record reads “F/U for severe knee pain: he requires a 4 wheel rolator and knee braces to walk. His knees are painfull” (sic). Objective examination showed that his knees were tender. On November 2013 VA knee examination, the Veteran reported right knee stiffness and edema that manifest when “he goes out to piddle in his garage, or walk his dog for short distance.” He also reported “pain in right knee episodically daily. Rates pain, when present, as 7 on 1-10 pain scale.” He reported flare-ups several times per month with pain rated 9/10, with “some relief with sitting in recliner and using heating pad.” On examination, range of motion testing showed flexion to 105 degrees and extension to 0 degrees (normal), both without objective evidence of painful motion. Repetitive use testing did not result in additional limitation in range of motion or functional loss/impairment. Tenderness and pain to palpation were not noted. Muscle strength testing was normal 5/5, joint stability testing was normal, and there was no evidence of recurrent patellar subluxation/dislocation. The examiner noted that the Veteran had intermediate degrees of residual weakness, pain, or limitation of motion; functional impairment was not to the extent that the Veteran would be equally well served by an amputation with prosthesis; the right knee disability did not impact on his ability to work. Regular use of a walker was noted “due to bilateral knees and hips.” On January 27, 2014 VA knee examination, the Veteran reported that in the past year his right knee disability was manifested by stiffness, weakness, swelling, giving way once or twice per month, and daily popping noises; he denied locking. He reported flare-ups that limit his ability to walk, stand, kneel, and squat, but did not report their frequency or duration. Range of motion studies found flexion to 110 degrees (with objective evidence of painful motion at 100 degrees) and extension to 0 degrees (normal) (with objective evidence of painful motion at 5 degrees). Repetitive use testing did not result in additional limitation in range of motion, but the Veteran reported additional functional loss/impairment due to pain and swelling. Tenderness or pain on palpation was noted. Muscle strength testing was normal (5/5) and there was no evidence of recurrent patellar subluxation/dislocation; however, joint stability testing showed anterior instability of 1+ (0-5 millimeters) and medial-lateral instability of 1+. The examiner indicated that the Veteran had chronic TKR residuals consisting of severe painful motion or weakness. The functional impairment was not to the extent that the Veteran would be equally well served by an amputation with prosthesis. The examiner opined that the Veteran’s bilateral knee disabilities prevent him from prolonged standing or walking employment, but that he is capable of sedentary employment. In the May 2018 JMPR, the parties noted that the Veteran reported on January 2014 VA knee examination that during the “past year” he experienced right knee stiffness, weakness, swelling, giving way once or twice per month, and daily popping noises. The JMPR states that the Board failed to discuss whether the Veteran’s report of symptomatology during the previous year was relevant and favorable evidence which could warrant an increased rating in excess of 30 percent prior to January 27, 2014. In an October 2018 statement, the Veteran’s attorney argued that the Veteran is entitled to a 60 percent rating throughout, citing to a November 2012 clinical record which noted “lots of pain” and a May 2013 clinical record which noted “severe” knee pain. He further argued that the rating criteria (Code 5055) “is not based on the Veteran's ability to move his knee, but rather on the pain he experiences when he does so.” Analysis Upon review of the evidence, the Board finds that prior to January 27, 2014, the Veteran’s post-TKR right knee disability more closely approximates the criteria for the 30 percent rating currently, and that a 60 percent schedular rating under Code 5055 is not warranted. Initially, the Board acknowledges the Veteran’s report on January 27, 2014 VA examination of right knee stiffness, weakness, swelling, giving way once or twice per month, and daily popping noises during “the past year.” However, the contemporaneous medical (clinical) evidence is against a finding that there was severe painful motion or weakness prior to that date. Prior to January 27, 2014, the evidence shows that the knee generally had “good range of motion.” See May 23, 2012 VA clinical record. A December 2012 private physical therapy record notes that active range of motion testing showed flexion to 95 degrees and extension to 0 degrees (full); on November 2013 VA examination, range of motion testing showed flexion to 105 degrees and extension to 0 degrees; such findings are insufficient to warrant a compensable rating for limitation of flexion and extension. Furthermore, on November 2013 VA examination (74 days prior to the January 2014 VA examination) strength and stability testing was normal; there was no pain to palpation; and, there was no additional functional limitation of range of motion or impairment on repetitive use testing. The examiner opined that the Veteran had an intermediate degree of residual weakness, pain, or limitation of motion following the TKR. Such evidence is against a finding of severe residual pain and weakness. The Board notes the May 23, 2012 VA clinical record which noted the knee was “a little loose” but finds such report inconsistent with the other competent evidence during the period under review, including x-rays taken on the same visit (which showed no evidence of loosening) and a July 2012 clinical examination (two months later) that showed no loosening of the knee. Notably, “a little loose” does not reflect severe residual pain and weakness. The Board acknowledges the Veteran’s attorney’s October 2018 argument that a 60 percent rating is warranted prior to January 27, 2014 for severe painful motion, citing to a November 2012 clinical notation of “lots of pain” and a May 2013 clinical record which noting “severe” knee pain. However, on longitudinal review of the record, the Board finds that the preponderance of the competent medical evidence is against a finding of severe painful motion. In November 2011, the Veteran reported “some pain in it off and on.” In March 2012, he reported that his right knee was “starting to hurt.” A December 2012 physical therapy record notes a complaint of pain with wincing on palpation to the pes anserine, but no pain to palpation along the anterior, posterolateral, and posteromedial joint lines, and only a “complaint of pain” (but not wincing, which would suggest severe pain) on the lateral joint line, medial joint line, and popliteal posse. A December 2013 statement by the Veteran’s private surgeon notes that he was “doing very well” with this right knee TKR. And on November 2013 VA knee examination, less than 3 months prior to the January 27, 2014 examination, the Veteran reported episodic (not constant) pain which manifests with activity; range of motion testing found no objective evidence of painful motion. Accordingly, the Board finds that prior to January 27, 2014, the Veteran’s post-TKR right knee disability most closely approximated the criteria for the 30 percent rating currently assigned, and that a 60 percent schedular rating under Code 5055 for severe painful motion or weakness is not warranted. The Board has considered whether the evidence warrants an intermediate rating (between 30 and 60 percent) based on combination of ratings under Codes 5256, 5261, or 5262, pursuant to Code 5055. A higher (40 percent) rating under Code 5256 is warranted for ankylosis at 10 to 20 degrees. It is not alleged, nor did any medical examination find, that the right knee was ankylosed. Consequently, a rating by analogy to Code 5256 is not warranted. Under Code 5261, a rating in excess of 30 percent (40 percent) is warranted when extension is limited at 30 degrees. Even with factors of pain, fatigability, weakness, and incoordination considered, prior to January 27, 2014 extension was normal, to 0 degrees (in December 2012 and on November 2013 VA examination). Consequently, rating under Code 5261 would be of no benefit to the Veteran. Under Code 5262 a 40 percent (maximum) rating is warranted for nonunion of tibia/fibula with loose motion, requiring a brace. While the Veteran reported in a December 2012 statement that he wears a brace, no examination has found nonunion (or equivalent post-TKR pathology) requiring wearing of a brace. Accordingly, an intermediate (between 30 and 60 percent) rating is not warranted by analogy to any of the schedular criteria specified for consideration for the period prior to January 27, 2014. The preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a left knee disability, to include as secondary to a post-TKR right knee disability, is remanded. In the May 2018 JMPR, the parties agreed that the Board erred when it relied on a January 2014 VA medical opinion because “the examiner’s rationale only discussed that [the Veteran’s] service-connected right knee disability is less likely to cause a left knee disability and failed to address whether [his] left knee condition was aggravated by his service-connected right knee condition.” The parties agreed, “Therefore, upon remand, the Board shall ensure that VA obtains a new medical opinion which adequately addresses the issue of aggravation.” Accordingly, a remand for an adequate medical opinion in this matter is necessary. As the appeal must be remanded for additional development anyway, the Veteran will have the opportunity to submit (or identify for VA to obtain) any outstanding (i.e., those not already in the record) private treatment records pertaining to his left knee. Outstanding records of VA evaluations or treatment the Veteran received for left knee disability may contain pertinent information, are constructively of record, and must be secured. The matter is REMANDED for the following: 1. Secure for the record updated (to the present, those not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for his left knee since December 2014 (when the most recent VA treatment records in the record are dated). Ask the Veteran to provide identifying information regarding any private evaluations or treatment he has received for his left knee disability (records of which are not already in the record) and to submit authorizations necessary for VA to secure outstanding clinical records from all providers identified. Obtain those records. 2. When the development requested above is completed, arrange for an orthopedic examination of the Veteran to ascertain the nature and likely etiology of his left knee disability. The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. On review of the record and examination of the Veteran, the examiner should respond to the following: a) Identify (by diagnosis) each left knee disability found/shown during the pendency of the instant claim. b) Identify the likely etiology for each left knee disability diagnosed. Is it at least as likely as not (a 50 percent or greater probability) that the disability was incurred during the Veteran’s active service? (c) If the response to (b) is no, is it at least as likely as not (a 50% or greater probability) that it was caused or aggravated by his service-connected right knee disability? The opinion must address aggravation. If a left knee disability entity is found to be unrelated to service, and to not have been caused or aggravated by a service-connected disability, identify the etiology considered more likely. Include rationale with all opinions, citing to supporting clinical data and/or medical literature, as appropriate. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dupont, Jason