Citation Nr: 18158595 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-57 267 DATE: December 17, 2018 ORDER Entitlement to a 60 percent from June 1, 2016 for degenerative joint disease of the left knee, status post left knee replacement is granted. Entitlement to a separate 20 percent rating for lateral instability of the left knee effective January 27, 2017, is granted. FINDINGS OF FACT 1. From June 1, 2016, the Veteran’s degenerative joint disease of the left knee was manifested by left knee replacement with evidence of chronic residuals consisting of severe painful motion or weakness in the affected knee. 2. Effective January 27, 2017, the Veteran’s left knee was productive of moderate instability. CONCLUSIONS OF LAW 1. Effective June 1, 2016, the criteria for entitlement to a 60 percent rating, but no higher, for degenerative joint disease of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5055. 2. Effective January 27, 2017, the criteria for a separate 20 percent rating for moderate lateral instability were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In his October 2017 form 9, the Veteran declined an optional Board hearing. No subsequent hearing requests have been received. Entitlement to a rating in excess of 30 percent for degenerative joint disease of the left knee. Following a total left knee replacement, the Veteran was awarded a temporary total disability rating from April 2015 through June 1, 2016. The Veteran’s left knee disability was subsequently rated at 30 percent with an effective date of June 1, 2016 and later increased to 60 percent with an effective date of January 27, 2017. In his October 2017 Form 9, the Veteran withdrew his claim for an increased rating, indicating that he would accept the 60 percent rating he was awarded. As the Veteran was not awarded a rating of 60 percent until January 27, 2017, the issue of entitlement to a rating in excess of 30 percent from June 1, 2016 to January 27, 2017 is still on appeal. Rating Principles A disability rating is determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage rating contained in the Rating Schedule represents, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. During the period at issue, the Veteran’s degenerative joint disease of the left knee status post total left knee replacement was rated at 30 percent under diagnostic code 5055. A 30 percent rating is the minimum rating under this code. A higher rating of 60 percent requires evidence of chronic residuals consisting of severe painful motion or weakness in the affected extremity. A rating of one hundred percent is awarded for one year following implantation of prosthesis. Analysis The Veteran contends that he is entitled to a rating in excess of 30 percent for his left knee degenerative joint disease, status post left knee replacement because he has ongoing knee swelling from walking or being on his feet too long, requires the use of a cane to keep his balance, is unable to bend his left knee, and has difficulty leading a normal life. See October 2016 Form 9. August 2016 imaging of the left knee showed total knee replacement in good position and alignment, some calcification adjacent ot the medial articular region but no evidence of fracture, dislocation or unusual wear. See September 2016 Medical Treatment Record-Nongovernment Facility at 8. The Veteran also had an orthopedic consultation in August 2016. See September 2017 CAPRI at 1. The Veteran reported ongoing knee pain, with mild swelling, and ambulated with a cane. Upon examination, the left knee showed a well healed anterior scar with no redness and minimal swelling. The Veteran endorsed mild pain around the knee and was noted to have a small effusion on the supra patellar area with no tenderness. The Veteran endorsed no pain over his joint lines and was noted as stable to varus and valgus stress. The Veteran’s range of motion was zero to about 95 degrees of flexion, with full muscle strength. Imaging noted the tibia and fibula as well seated with no acute fracture or dislocation. The Veteran was advised to continue taking over the counter pain reliever, elevate the knee at day’s end and use a neoprene sleeve to control swelling. September 2016 physical therapy notes show ongoing complaints of left knee pain with decreased mobility and difficulty walking. See September 2016 Medical Treatment Record- Nongovernment Facility at 1. The Veteran ambulated with a cane. Upon examination, the Veteran demonstrated decreased heel strike on the left, decreased knee flexion during left swing phase, full strength through the bilateral lower extremities, active range of motion from 10 to 90 degrees and passive range of motion from eight to 95 degrees. See September 2016 Medical Treatment Record- Nongovernment Facility at 4. During an October 2016 VA examination, the Veteran was noted to have a linear scar on his left knee. The scar was not painful or unstable and measured 16 centimeters. See October 2016 C&P Exam. No other left knee scars were noted. The Veteran was also afforded a left knee VA examination in October 2016. See October 2016 C&P Exam. The Veteran reported flare ups of the left knee with swelling which caused pain, difficulty walking and interfered with his daily life. See October 2016 C&P Exam at 3. Despite the Veteran’s contentions, his left knee retained flexion from 0 to 100 degrees and extension from 100 to 0 degrees. The examiner opined that the Veteran’s abnormal range of motion contributed to functional loss with respect to walking long distances or running. The Veteran was noted to have pain on flexion, pain with range of motion and localized tenderness or pain on palpation of the joint, but no objective evidence of crepitus. See October 2016 C&P Exam at 4. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time. See October 2016 C&P Exam at 5. However, pain, weakness, fatigability or incoordination did significantly limit functional ability with flare ups. The examiner opined that during a flare up the Veteran could engage in flexion from 0 to 90 degrees, and extension from 90 to 0 degrees. See October 2016 C&P Exam at 6. The Veteran was also noted to have slightly reduced muscle strength in his left knee, with 4/5 strength with flexion but full strength with extension. See October 2016 C&P Exam at 7. There was no evidence of ankylosis, lateral instability or recurrent subluxation. See October 2016 C&P Exam at 8. The Veteran also had no recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other fibular impairment. See October 2016 C&P Exam at 9. There were no meniscus conditions. The Veteran required a cane to ambulate. See October 2016 C&P Exam at 10. The residuals were described as intermediate degree of residual weakness, pain, or limitation of motion. The Veteran was afforded another VA examination in January 2017. The Veteran had ongoing left knee pain and use of a cane at all times. The examiner noted that as a result of his left knee disability, the Veteran has difficulty walking. The Veteran’s left knee retained flexion from 0 to 85 degrees and extension from 5 to 0 degrees. See January 2017 C&P exam at 3. The Veteran was noted to have pain on range of motion, objective evidence of localized tenderness but no objective evidence of crepitus. The Veteran reported that as a result of his abnormal range of motion, he had difficulty in a car or sitting low. See January 2017 C&P exam at 3. The Veteran retained full muscle strength in his left leg, and there was no evidence of ankylosis or history of recurrent subluxation or effusion. See January 2017 C&P exam at 4, 5. The Veteran’s left knee was noted to have moderate lateral instability. See January 2017 C&P exam at 6. The Veteran was noted to have a scar on his left knee, measuring 10 centimeters long and 0.2 centimeters wide. The Veteran ambulated with crutches. The examiner indicated that the Veteran’s left knee disability had chronic residuals consisting of severe painful motion or weakness. Finally, the examiner noted that as a result of the Veteran’s left knee disability he is unable to go back to work as a welder because he cannot stand for prolonged periods. See January 2017 C&P exam at 9. January 2017 treatment records note ongoing complaints of left knee pain and swelling, exacerbated by movement. See September 2017 CAPRI at 1. In a February 2017 VA addendum opinion, the examiner noted pain on passive range of motion but no pain with weight bearing. See February 2017 C&P exam. After resolving reasonable doubt in the Veteran’s favor, following the cessation of his 100 percent rating, the evidence of record more nearly approximates the criteria for a higher rating of 60 percent. The Board concludes that the October 2016 VA examination and January 2017 VA examination results reveal substantially similar findings which reflect chronic residuals consisting of severe painful motion or weakness in the affected extremity. Thus, a 60 percent rating is assigned effective June 1, 2016. 38 C.F.R. § 4.71a, DC 5055. Entitlement to a separate rating for lateral instability of the left knee. The Veteran was initially service connected for left knee lateral instability with a rating 10 percent from November 15, 2011 to April 20, 2015. Following his left knee surgery, he was awarded a total 100 percent disability rating from April 20, 2015 to June 1, 2016. Effective June 1, 2016, a noncompensable rating is assigned under DC 5257. Legal Criteria Even though this issue was phrased as a reduction from 10 percent to noncompensable, the proper analysis is whether the Veteran is entitled to a separate rating for lateral instability following the cessation of his 100 percent rating. The 10 percent rating previously assigned for lateral instability was not reduced, rather following the surgery the residuals of the left knee disability had to be evaluated under the most appropriate codes, which the RO determined was DC 5055. A 10 percent rating is warranted for slight lateral instability, a 20 percent is warranted for moderate lateral instability, and a 30 percent is warranted for severe lateral instability under Diagnostic Code 5257. Facts and Analysis As reflected above, the Veteran had a total knee replacement in April 2015. See June 2015 Medical Treatment Record. His 100 percent rating ended June 1, 2016. The evidence of record did not reflect any instability until the January 27, 2017 VA examination wherein moderate lateral instability was found following examination. Accordingly, a 20 percent rating, but no higher, is awarded effective January 27, 2017. 38 C.F.R. §§ 4.7, 4.71a, DC 5257. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Wimbish, Associate Counsel