Citation Nr: 18156858 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-44 141 DATE: December 11, 2018 ORDER Entitlement to a rating in excess of 10 percent for symptomatic removal of the semilunar cartilage of the right knee, prior to April 12, 2016, is denied. REMANDED Entitlement to an increased rating in excess of 30 percent for right knee total arthroplasty from June 1, 2017, is remanded. FINDING OF FACT Prior to the Veteran’s right knee replacement, his service-connected right knee disability was characterized as right knee meniscus tear, and he was assigned the maximum 10 percent rating under Diagnostic Code 5259, which contemplated the right knee signs and symptoms, and the resulting functional impairment. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for symptomatic removal of the semilunar cartilage of the right knee, prior to April 12, 2016 have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 through March 1980 and from March 1980 through January 2004. This case comes before the Board of Veterans’ Appeals (Board) from a December 2014 rating decision. The regional office (RO) denied the Veteran’s claim for a rating in excess of 10 percent for his right knee disability. The RO explained that the 10 percent rating was continued for symptomatic removal of the semilunar cartilage because the Veteran experienced knee pain during flare-ups. During the pendency of the appeal, the Veteran underwent a total right knee replacement in April 2016. His right knee disability was therefore recharacterized as status post right knee total arthroplasty, and he was awarded a temporary total rating under 38 C.F.R. § 3.40 for a period of convalescence following surgery. Following the expiration of the temporary total rating under 38 C.F.R. § 4.30, the Veteran’s status post right knee replacement was rated under Diagnostic Code 5055 which governs ratings following a knee replacement. A 100 percent rating was assigned under Diagnostic Code 5055 from June 1, 2016 until June 1, 2017. Thereafter a 30 percent rating was assigned. Given the change in diagnosis and disability rating following surgery, the Board will address the pre-operative knee disability as a separate condition from the status post right knee replacement. Additionally, the Board notes that during the pendency of this appeal, the Veteran filed a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Development on this issue continues at the Agency of Original Jurisdiction (AOJ), and the denial of this claim prior to the knee replacement has no bearing on the Veteran’s pending TDIU claim. Accordingly, the issue will not be addressed in this decision. Entitlement to a rating in excess of 10 percent for a right knee disability prior to undergoing a total knee replacement on April 12, 2016. At the time of the claim the Veteran’s right knee disability was assigned a single 10 percent rating under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage. The Veteran filed a claim for a higher rating asserting that the 10 percent rating did not fully compensate him for his disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2017). Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For disabilities of the musculoskeletal system, the Board also considers whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40 (2017). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (2017). Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. This is the only schedular rating assignable under Diagnostic Code 5259. As that is the only rating available, the Board is unable to afford the Veteran a higher rating under that particular diagnostic code. However, a Veteran is not limited to only one evaluation. Separate ratings under Diagnostic Codes 5257, 5260/5261, and 5258/5259 may be assigned for a disability of the same knee joint. Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that evaluation of a knee disability under Diagnostic Codes 5260 and/or 5261 does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, and vice versa. The Court further held that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different Diagnostic Code. In the context of evaluating musculoskeletal disabilities based on limitation of motion, a manifestation of disability has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995). Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (2017). Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Court has interpreted 38 U.S.C. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. In Esteban, the Court held that the critical element was that none of the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions. Diagnostic Code 5010 governs arthritis due to trauma, substantiated by x-ray findings, which in turn is to be rated under Diagnostic Code 5003 as degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a (2017). Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id., Diagnostic Code 5003 (2017). Note (1) under Diagnostic Code 5003 provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id., Diagnostic Code 5003, Notes (1) and (2) (2017). Diagnostic Codes 5260 and 5261 rate the knee on the basis of limitation of motion. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II (2017). Under Diagnostic Code 5260, a noncompensable rating is assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating is assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating is assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating is assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). Under Diagnostic Code 5261, a noncompensable rating is assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating is assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating is assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating is assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating is assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating is assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). In addition, under Diagnostic Code 5257, slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling. Moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling. Severe recurrent subluxation or lateral instability of the knee is rated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). Separate disability ratings based on lateral instability and/or recurrent subluxation may be assigned in addition to ratings based on limited motion under Diagnostic Codes 5003, 5010, 5260 and 5261. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2017). Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 C.F.R. §§ 4.2, 4.6 (2017). The Veteran was afforded one VA examination between the filing of his claim and his total knee replacement. During this same period, the Veteran visited his private physician in connection with his knee disability on multiple occasions, during which range of motion tests were administered. The Veteran was afforded a VA examination in September 2014. A range of motion test was performed which showed extension to zero degrees and flexion to 130 degrees. In November 2014 the Veteran visited his private physician who performed a range of motion test which showed extension to zero degrees and flexion to 120 degrees. In May 2015 the Veteran again visited his private physician who performed a range of motion test which showed extension to zero degrees and flexion to 120 degrees. The Veteran visited his private physician again in August 2015 who performed a range of motion test which showed extension to zero degrees and flexion to 125 degrees. In an October 2015 the Veteran visited his private physician who performed a range of motion test which showed extension to zero degrees and flexion to 110 degrees. Further, in May 2015, the Veteran reported that the pain in his knee had become much worse and that it occasionally caused him to fall over. Based on the above results, the Veteran’s right knee range of motion was not limited to a compensable degree. At worst, the Veteran had right knee extension to zero degrees and flexion to 110 degrees before he underwent a total knee replacement. This corresponds with a noncompensable disability rating under both Diagnostic Codes 5260 and 5261, which in turn, allows for the possibility of at least a 10 percent rating under the arthritis codes of 5003 and 5010. However, the rating of arthritis through Diagnostic Codes 5003, 5010, 5260, and 5261 is based on painful motion. Yet, in this case, the RO considered the Veteran’s pain as the main symptom for which he was granted the 10 percent rating for symptomatic removal of the semilunar cartilage of the right knee. Because the rating assigned under Diagnostic Code 5259 contemplates pain, the assignment of a separate rating under the arthritis/limitation of motion codes would be compensating the Veteran twice for the same symptom – pain. This would result in pyramiding, which is to be avoided. As noted above, if two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). However, even taking this into consideration, the Veteran could not receive a higher rating for his arthritis as the only rating available is 10 percent. While Diagnostic Code 5003 contemplates a 20 percent rating as well as a 10 percent rating, that 20 percent rating is only available when there is x-ray evidence of arthritis with an absence of limitation of motion. While the Veteran’s knee motion is not limited to a degree that would warrant a compensable rating under 5260/5261 it precludes him from obtaining a 20 percent rating for his arthritis. Thus, the Veteran is not entitled to a separate rating through Diagnostic Codes 5010/5003. The Board also considered whether a separate rating is warranted for slight, moderate, or severe recurrent subluxation and/or lateral instability under Diagnostic Code 5257; however, the Veteran’s VA examination in September 2014 showed no knee instability. While the Veteran reported some instability due to pain in weakness in October 2016, there is no indication that such would warrant a separate compensable rating or that it is not due to the symptomatic removal of semilunar cartilage, and thus already considered in the current 10 percent disability rating. Thus, the Board accords more weight to the 2014 VA examination, the findings of which are based on objective testing conducted during examination. Further, the Veteran is not entitled to any additional compensation under Diagnostic Code 5256 (ankylosis) based on the results of the multiple range of motion tests perform during the relevant period. Lastly, a 20 percent rating under Diagnostic Code 5258 is not applicable in this case because the entire period covered by this claim is post-surgical with regard to the meniscal injury. The Board's findings are based on the Rating Schedule. Generally, it must be remembered that the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2017). In this regard, 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. See 38 C.F.R. § 4.10 (2017). The disability evaluations are based upon this functional impairment-the lack of usefulness, of these parts or systems, especially in self-support. Moreover, the Rating Schedule is based primarily on the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15 (2017). To afford justice in exceptional situations, however, an extraschedular rating may also be assignable. 38 C.F.R. § 3.321 (b) (2017). The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted, provided that it articulates the reasons or bases for that determination. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The extraschedular determination must follow a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, the level of severity and symptomatology of a Veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe a Veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16. The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the analysis of the first two steps shows that the Rating Schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the disability be referred to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. 111. In this case, referral for extraschedular consideration is not warranted. The Veteran's service-connected right knee disability is manifested by signs and symptoms such as pain and weakness, which impair his ability to stand for long periods, walk, or use stairs. These signs and symptoms, and the resulting functional impairment, are expressly contemplated by the Rating Schedule. The diagnostic codes in the Rating Schedule corresponding to disabilities of the knee provide disability ratings on the basis of painful motion and weakness. See 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5003, 5010, 5257, 5258, 5259, 5260, and 5261 (2017). In fact, for all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40 (2017); Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59 (2017); Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran's disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. See 38 C.F.R. §§ 4.1, 4.10, 4.15 (2017). In addition, he does not contend that his right knee disability presents an exceptional or unusual disability picture to warrant an extraschedular rating. In short, there is nothing exceptional or unusual about her right knee disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Accordingly, the Veteran’s claim for a rating in excess of 10 percent for his right knee disability prior to his total knee replacement is denied. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 30 percent for right knee total arthroplasty from June 1, 2017 is remanded. The Veteran asserts that he is entitled to a higher rating for residuals from his complete knee replacement which was performed on April 12, 2016. The Veteran was granted a 100 percent rating under Diagnostic Code 5055 from the date of the surgery until June 2017 by an August 2016 rating decision. That same rating decision determined that after June 1, 2017 the Veteran would be rated at 30 percent for his disability, pursuant to the criteria under 38 C.F.R. 4.71(a), Diagnostic Code 5055. During the pendency of this appeal and following the issuance of the August 2016 Statement of the Case (SOC), the Veteran submitted significant evidence in support of his claims for a higher rating status post knee replacement. Further, extensive VA treatment records have been added to the file and an August 2018 VA knee and lower leg examination was conducted, in connection with claims not currently before the Board, which contains relevant information to this claim. However, this evidence has not yet been assessed by the Agency of Original Jurisdiction (AOJ) as it pertains to the pending appeal. Thus, a remand is now warranted such that this evidence may be considered in a Supplemental Statement of the Case (SSOC). The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of the right knee status post knee replacement. All opinions must be accompanied by a complete rationale and the examiner should consider the Veteran's self-reported history with regard to onset and observable symptoms. The examiner is asked to opine specifically as to whether the Veteran’s right knee replacement is manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity. 3. Readjudicate the issue of whether the Veteran’s current knee disability warrants a rating in excess of 30 percent following any additional development deemed necessary. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shelton, Law Clerk