Citation Nr: 18157334 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-35 586A DATE: December 12, 2018 ORDER Restoration of a 20 percent rating for right knee degenerative joint disease (DJD) from August 1, 2013 is denied. A rating higher than 20 percent for right knee medial meniscectomy before May 14, 2014 is denied. A 60 percent disability rating, and no more, for total right knee arthroplasty from March 1, 2014 is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACTS 1. The reduction of the Veteran’s right knee DJD is based on adequate examinations from August 2013 and March 2016 that showed improvement of the right knee. 2. Before the total replacement surgery, the Veteran’s medial meniscectomy was not manifested by severe recurrent subluxation or lateral instability. 3. As of July 1, 2015, the Veteran’s total right knee arthroplasty is manifested by chronic residuals consisting of sever painful motion or weakness, as well as fatigue and lack of endurance. CONCLUSIONS OF LAW 1. The criteria for restoration of a 20 percent rating from August 1, 2013 for right knee DJD are not met. 38 U.S.C. §§ 1155, 5107, 5117; 38 C.F.R. §§ 3.105(e), 3.344, 4.104, Diagnostic Codes 5010-5260. 2. The criteria for rating higher than 20 percent for right knee medial meniscectomy are not met before May 14, 2014. 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5259. 3. The criteria for a 60 percent rating, and no more, for total right knee arthroplasty from July 1, 2015 are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to March 1980. Reduction In February 2012, the Veteran filed a claim seeking increase rating for his right knee condition. At that time, his service-connected right knee DJD was rated as 20 percent disabling effective January 25, 2011. The Regional Office (RO) issued an August 2013 rating decision decreasing the evaluation for the Veteran’s right knee DJD from 20 percent to 10 percent effective August 1, 2013. When a reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, VA is required to comply with due process requirements set forth in 38 C.F.R. § 3.105 (e). However, VA need not apply these due process requirements, where ratings are changed in a single decision that does not effectuate an actual decrease in the compensation the Veteran receives each month because there is no reduction. See O’Connell v. Nicolson, 21 Vet. App. 89 (2007); Reizenstein v. Shinseki, 583 F.3d 1331, 1337-38 (Fed. Cir. 2009); and See also Hamer v. Shinseki, 24 Vet. App. 58 (2010). In this case, the reduction of the evaluation of the service-connected right knee DJD from 20 percent to 10 percent effective August 1, 2013 did not result in an overall reduction in the Veteran’s combined disability rating. To the contrary, the Veteran’s combined disability rating increased from 80 percent to 100 percent from August 1, 2013 to February 2014 and to 90 percent from March 1, 2014. For this reason, the Board need not consider whether there has been compliance with 38 C.F.R. § 3.105 (e). Therefore, Board will proceed to adjudicate the merits of the decrease in rating. Under 38 C.F.R. § 3.344 (c), when a disability rating has been in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction. Here, the 20 percent rating for the Veteran’s right knee DJD was in effect less than five years. As a result, the regulations governing stabilization of disability evaluations found in 38 C.F.R. § 3.344 (a) and (b) are not applicable. 38 C.F.R. § 3.344 (c). In any rating reduction, VA must determine that an improvement in a disability has actually occurred, and that it actually reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. Brown (Kevin) v. Brown, 5 Vet. App. 413, 421 (1993). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO when the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In this case, the Veteran’s right knee DJD is rated under diagnostic code (DC) 510-5260. In general, hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Here, DC 5010 requires that the Veteran’s DJD be rated based on limitation of motion. Therefore, the hyphenated DC indicate that the Veteran’s knee disability is rated under the criteria for limitation of flection (DC 5260). Under DC 5260, limitation of flexion of the leg, a 0 percent rating is assigned when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. VA must also analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Full range of knee motion is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Here, the Veteran was granted a 20 percent disability rating based on finding of a February 2011 VA examination that reflected a forward flexion limited to 30 degrees, which did not decrease after repetitive use test. Since that time, an August 2013 disability benefit questionnaire (DBQ) shows that the Veteran has forward flexion of 115 with pain starting at that point. This result did not change after repetitive use test. The Veteran did not report flare-ups during this exam. Similarly, a March 2016 DBQ shows that the Veteran had flexion of 90 degrees with no change after repetitive use test. The Board recognizes that the March 2016 DBQ is after the Veteran’s total replacement surgery, thereby cannot be used to assign a disability rating under DC 5010-5260 without consideration of DC 5055. Notwithstanding, the Board is relaying on this examination to the extent it shows improvement in the severity of the Veteran’s limitation of flexion. Review of the examination report shows that the Veteran’s right knee has a substantially improved range of flexion during the August 2013 exam because the Veteran did not have a range of flexion limited to 45 degrees to warrant a compensable rating under DC 5260 much less a 20 percent rating. The three years between the August 2013 and March 2016 exams further shows that the improvement was sustained for years. The United States Court of Appeals for Veterans Claims (CAVC), in Correia v. McDonald, has held that a VA range of motion examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 28 Vet. App. 158 (2016). To the extent that the VA examinations relevant to this appeal period did not satisfy these criteria, as the knees have undergone replacement surgery a remand to correct any such error under Correia is not feasible. Notwithstanding, the August 2013 and March 2016 examinations are adequate to adjudicate this claim. In sum, the medical evidence of record does not show that the Veteran’s right knee DJD causes impairment at a level contemplated by a 20 percent rating as of August 2013. Therefore, the Board finds that the reduction in the rating from 20 percent to 10 percent effective August 1, 2013 is appropriate. Accordingly, the claim for restoration of a 20 percent rating from August 1, 2013 is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). Increase Rating The Veteran is seeking increase rating for his right knee disability. The VA’s Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, DCs are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. The Veteran underwent total knee replacement surgery on May 14, 2014. Accordingly, the Veteran’s right knee disability was rated under DC 5259- 5257, DC 5010-5260 before his surgery and under DC 5055 thereafter. A. Knee Disability Rating Before Total Replacement Surgery. There are several DCs that are applicable to knee disabilities found in 38 C.F.R. § 4.71a. In this case, the Veteran has limitation of flexion and medial meniscectomy, which entails DC 5260 and DC 5257 are applicable. However, DC 5261 (extension), 5256 (ankylosis of the knee), 5258 (dislocated semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are all inapplicable in this case. The evidence, simply does not reflect findings or a history consistent with these conditions. The Veteran’s most recent “rating code sheet” shows a 20 percent disability rating under DC 5259-5257. The Board notes that DC 5259 does not require an application of an additional DC. Rather, it is applicable to removal of semilunar cartilage, which, if symptomatic, would require a separate 10 percent disability rating. As noted above, review of the medical record from the appeal period does not show removal of semilunar cartilage that is symptomatic. Therefore, the Board finds that the applicable disability rating for the Veteran’s medial meniscectomy is DC 5257. Notably, the Board has considered the implications of changing DCs. That is, according to 38 U.S.C. § 1159 (Protection of Service Connection), service connection for any disability, which has been in force for ten or more years shall not be severed... except upon a showing that the original grant of service connection was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. See also 38 C.F.R. §§ 3.105 (d) and 3.957. Here, the Veteran’s medial meniscectomy has been in effect more than 10 years. However, the change in the applicable DC, does not constitute a severance of the service-connected disability. Rather, DC 5257 provides a more accurate description of the Veteran’s service-connected medial meniscectomy and symptoms. Notably, the change has not resulted in any reduced benefit to the Veteran. Under DC 5257, a 30 percent rating is warranted for severe recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate subluxation or lateral instability, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. In this case, the medical evidence of record does not reflect a disability rating that is consistent with a 30 percent disability rating under DC 5257. An August 2015 DBQ does not reflect instability. The Board does not take away benefit awarded to a Veteran, but absent evidence showing right knee instability during the applicable appeal period, a compensable rating is not warranted much less a maximum rating of 30 percent under DC5257. The criteria for a rating higher than 20 percent for right knee medial meniscectomy before May 14, 2014 are not more nearly approximated. Therefore, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). B. Knee Disability Rating After Total Knee Replacement Surgery. With respect the period after the Veteran’s total knee replacement surgery, the Veteran’s right knee is rated as 30 percent disabling effective July 1, 2015 to March 08, 2016, and 60 percent thereafter under DC 5055. Under DC 5055, a disability rating of 100 percent is assigned for one year following the knee replacement surgery—which was assigned to the Veteran’s knees in this case. Thereafter, it requires an assignment of 30 percent disability rating when there is intermediate degree of residual weakness, pain or limitation of motion rate by analogy to diagnostic code 5256, 5261, or 5262. Alternatively, a higher rating of 60 percent is assigned where there are residuals consisting of severe painful motion or weakness in the affected extremity. In this case, the medical evidence of record establishes a level of impairment consistent with 60 percent rating during the entire appeal period after the Veteran’s surgery. To that end, a March and November 2016 examinations show that the Veteran has chronic residuals consisting of severely painful motion or weakness, as well as fatigue and lack of endurance. The Veteran demonstrates flexion from 0 to 90 degrees and extension from 90 to 0 degrees as noted in a March 2016 DBQ. The Veteran had less movement than normal because of swelling and instability. During the November 2016 VA exam, the Veteran demonstrated range of flexion from 30 degrees to 100 degrees, with pain starting at 90 degrees. He also had an extension from 100 degrees to 30 degrees. These results remained the same during the repetitive use test. There was evidence of pain with weight bearing. The muscle strength test reflects that the Veteran had active movement with gravity eliminated during flexion and active movement against some resistance during extension. Viewing these examination results in light most favorable to the Veteran, and resolving all the benefit of the doubt in his favor, the Board finds that a 60 percent disability rating is warranted after the Veteran’s right knee surgery because the evidence shows painful motion, weakness, fatigue and lack of endurance. Notably, 60 percent is the maximum rating possible, outside the convalescence period following knee replacement surgery. Therefore, the Veteran is assigned the maximum rating possible under DC 5055. As explained above, the criteria for a 60 percent disability rating, and no more, for total right knee arthroplasty are more nearly approximated from March 1, 2014. (Continued on the next page)   Accordingly, the claim is granted to this extent only, subject to the laws and regulations governing the payment of monetary benefits. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.SOLOMON