Citation Nr: 18158984 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-29 527 DATE: December 18, 2018 ORDER Entitlement to an effective date prior to February 9, 2004 for special monthly compensation based on anatomical loss of the right foot is denied. Entitlement to an effective date prior to February 9, 2004 for service connection for loss of use of the right leg due to right knee disability is denied. Entitlement to an evaluation in excess of 30 percent for postoperative right knee instability, prior to February 9, 2004, is denied Entitlement to an evaluation in excess of 10 percent for limitation of right knee flexion, prior to February 9, 2004, is denied. FINDINGS OF FACT 1. Prior to February 9, 2004, right foot effective function remained other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. 2. Prior to February 9, 2004, right leg effective function remained other than that which would be equally well served by an amputation stump at the site of election with use of a suitable prosthetic appliance. 3. Prior to November 9, 2004, the Veteran’s right knee had severe instability and arthritis with painful motion, but right knee flexion was not limited to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 9, 2004 for special monthly compensation based on anatomical loss of the right foot have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for an effective date prior to February 9, 2004 for service connection for loss of use of the right leg due to right knee disability have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. Prior to February 9, 2004, the criteria for a rating in excess of 30 percent for postoperative right knee instability are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a (2017). 4. Prior to February 9, 2004, the criteria for an evaluation in excess of 10 percent for limitation of right knee flexion is not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to May 1969. In October 2007, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans’ Appeals (Board) hearing at the Regional Office (RO) in Detroit, Michigan. A transcript of the proceeding has been associated with the claims file. In a May 2008 decision, the Board, in pertinent part, denied a rating in excess of 30 percent for postoperative right knee instability, denied a rating in excess of 10 percent for limitation of right knee flexion, and granted a 10 percent rating for limitation for right knee extension. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and the Court issued an Order in November 2009 that granted a Joint Motion for Partial Remand (JMPR), remanding in pertinent part the right knee instability and flexion claims. The right knee extension award was not disturbed. In light of the Court’s decision, the Board remanded for an additional knee examination. In the years since, the Veteran was granted special monthly compensation based on anatomical loss, and service connection for loss of use of the right leg due to right knee disability. Both benefits arise from the Veteran’s December 2002 increased rating claim for his right knee. As the current compensation is not considered a full grant of the benefits sought, all four issues remain on appeal. The Board also remanded a claim for entitlement to service connection for a low back disability, but this has since been granted by the RO and is thus not on appeal. 1. Entitlement to an effective date prior to February 9, 2004 for special monthly compensation based on anatomical loss, and service connection for loss of use of the right leg due to right knee disability. The Veteran was awarded special monthly compensation (SMC) based on loss of use of the right lower extremity in a February 2013 rating decision, effective from March 8, 2011, the date of his claim for a total disability rating for individual unemployability. During the course of the appeal, the effective date was revised to February 9, 2004. See September 2015 rating decision (recharacterized as SMC based on anatomical loss of the right foot due to right knee disability). Similarly, the RO granted service connection for loss of use of the right leg due to right knee disability effective February 9, 2004. See September 2015 rating decision. In his substantive appeal, the Veteran indicated an effective date as early as 2002 was warranted as this is when he initiated an increased rating claim for his right knee disability. See August 2015 substantive appeal. SMC is payable for anatomical loss of one foot. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). Under 38 C.F.R. § 3.350(a), loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example: (a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the foot involved. (b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. Upon review of the record, the Board finds such criteria are not met prior to February 9, 2004. In establishing the current effective date of February 9, 2004, the RO relied on a VA examination administered on the same date. The RO determined this examination documented “severe limitation of motion, instability, and weakness to the extent that a finding of loss of use of the right leg is warranted.” However, a review of the February 2004 VA examination reveals it does not support a finding of loss of use of the Veteran’s right leg or foot. The February 2004 VA examination was a spine examination, but did address the Veteran’s right knee. The examiner noted the Veteran’s right knee was 15 degrees of varus. The examiner also noted effusion in the knee joint, moderate crepitation on movement, tenderness over the patellar and his joint line, “[m]ediolateral ligament is stable, but anteroposterior movement is slightly loose”. Active range of motion (ROM) was found to be 10-30 degrees with weakness to quadriceps and passive ROM was 10-45 degrees with compliant of pain. “Movement against gravity and resistance is moderate.” The examiner also noted the Veteran’s gait was mildly antalgic. A January 2003 VA joint examination revealed relatively similar findings as the February 2004 examination. The Veteran reported morning stiffness that has been worsening in his right knee, and that he has to use a knee brace. Despite these findings, and similar findings in treatment records before and after the examination, there is no indication the Veteran “uses the right leg as a peg to stand not as a hinge joint”, or otherwise meets the criteria for loss of use. See February 2013 VA examination (“right knee on function is so diminished that a well functioning prosthesis would likely provide more stability”). Instead, the treatment records reflect recommendation of eventual knee replacement surgery, with artificial cartilage relief in the interim. See November 7, 2002 VA treatment records (“advised by ortho at St. John’s that knee replacement should be deferred as long as possible to reduce number of times prosthesis will need to be replaced.”) (“partial relief from artificial cartilage relief”). Additionally, there is no indication of right knee ankylosis, paralysis of the external popliteal nerve, or shortening of the right leg. See, e.g., October 2010 VA examination (“Both lower limbs are equal in length.”). The Veteran has expressed a contrary lay opinion on when the criteria for loss of use are met prior to November 9, 2004; however, there are no contrary medical opinions of record. In adjudicating the Veteran’s claims, the Board must assess the competence and credibility of lay statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes. See Layno v. Brown, 6 Vet. App. 465 (1994). However, competent evidence concerning the nature of the Veteran’s right knee disability has been provided by medical personnel. The medical findings directly address the criteria under which loss of user is evaluated. As such, the Board finds the medical records to be the most probative evidence with regard to the Veteran’s claims. In light of the above, the evidence of record does not support a finding that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance prior to February 9, 2004. Therefore, the Board finds that loss of use of the Veteran’s right foot or leg has not been established prior to February 9, 2004. 2. Entitlement to an evaluation in excess of 30 percent for postoperative right knee instability, prior to February 9, 2004; and entitlement to an evaluation in excess of 10 percent for limitation of right knee flexion, prior to February 9, 2004 The Board previously remanded the Veteran’s right knee instability and flexion claims for a new VA examination, as the Veteran reported worsening of his knee disability since the then most recent VA examination in October 2005. However, in light of the “amputation rule” the Board will only consider the period prior to February 9, 2004 for both claims. The “amputation rule” provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2017). The fact that the veteran may have several distinct symptoms due to right knee disorder – e.g. loss of motion, pain, etc. - is moot because he cannot be assigned separate ratings that would total more than the amputation rule permits. It is for this reason, that when the RO effectuated the grant of the 60 percent rating for loss of use of the Veteran’s right leg this replaced the separate ratings in effect for limitation of motion and instability with a single rating, effective February 9, 2014. To emphasize, all ratings for a single extremity can total no more than the rating for amputation, which was met by the RO’s grant of service connection for loss of use of the Veteran’s right leg. Therefore, the Board will only consider the period prior to February 9, 2004. The Veteran’s right knee has, during the pendency of this appeal, been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for recurrent subluxation or lateral instability. Instability which is slight warrants a 10 percent evaluation, which is moderate warrants a 20 percent evaluation, and which is severe warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260 provides a 10 percent evaluation with flexion limited to 45 degrees, a 20 percent evaluation for flexion limited to 30 degrees, and a 30 percent evaluation for flexion limited to 15 degrees. In December 2002, the veteran filed a claim for an increased rating for his right knee disability. The Veteran attended a January 2003 VA examination. The report of this examination notes that the Veteran was overweight and walked with a mildly antalgic gait. The right knee was in 15 degrees of varus while weightbearing. Squatting was difficult due to pain. There was some swelling. The mediolateral ligament was stable, but the anteroposterior movement was loose, and Lachman’s test was positive. Range of motion was from 0 to 120 degrees with complaints of pain. Forward flexion was noted to be 40 degrees out of 80 degrees. Quadriceps muscle tone was moderate. X-ray revealed degenerative arthritis with some varus deformity and narrowing of joint space. Subsequent VA X-ray studies dated in September 2003 demonstrated moderate degenerative changes involving the medial and patellofemoral compartments of the right knee. Otherwise, the studies were considered normal. As noted above, the Veteran attended a VA spine examination in February 2004. The examiner noted the Veteran’s right knee was 15 degrees of varus. The examiner also noted effusion in the knee joint, moderate crepitation on movement, tenderness over the patellar and his joint line, “[m]ediolateral ligament is stable, but anteroposterior movement is slightly loose”. Active range of motion (ROM) was found to be 10-30 degrees with weakness to quadriceps and passive ROM was 10-45 degrees with compliant of pain. “Movement against gravity and resistance is moderate.” The examiner also noted the Veteran’s gait was mildly antalgic. As also noted above, treatment records from November 2002 indicate the Veteran will eventually have knee replacement surgery. Additionally, December 3, 2002 treatment notes include an examination of the Veteran’s right knee. “The right knee on examination showed considerable limitation of movements (range from -5 to 100 degrees). The knee was tender to palpate and there was gruntling sensation on passive movements of the joint.” After review of the evidence of record the Board finds increased ratings are not warranted. Under Diagnostic Code 5257, the highest evaluation available for instability of a knee is 30 percent for severe instability, and the Veteran has been in receipt of this evaluation since November 7, 2002. A higher 40 percent evaluation available under the Schedular criteria for evaluation of the knee would be warranted if the clinical evidence demonstrated ankylosis (complete bony fixation) in flexion between 10 and 20 degrees under Diagnostic Code 5256, or if there was demonstrated an actual nonunion of the tibia and fibula bones under Diagnostic Code 5262. As shown above, there is no competent clinical evidence revealing ankylosis of the knee joint, or actual nonunion of the tibia and fibula. Accordingly, a higher rating is not warranted. The Veteran is also in receipt of a separate 10 percent evaluation for arthritis with painful motion (flexion). The Board finds a change in the rating for the Veteran’s right knee flexion disability is not warranted. The next highest rating for the Veteran’s range of motion (flexion) disability is 20 percent, and a 20 percent rating is assigned for flexion limited to 30 degrees or less. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. This is not shown by the evidence of record prior to February 9, 2004. The February 9, 2004 VA examination indicates the possibility that such criteria is met, in noting “Active range of motion is 10-30 degrees with weakness to quadriceps and passive range of motion was 10-45 degrees with complaints of pain.” The examiner did not state this was in reference to limitation of flexion. However, even if the Board accepts that it was in reference to limitation of flexion, it is not factually ascertainable when such limitation began. Therefore, such an increased rating would be warranted from February 9, 2004, the date of examination, but not before. Prior to February 9, 2004, the evidence of record does not demonstrate flexion was limited to 30 degrees or less when considering pain, weakness, fatigability or incoordination. See 38 C.F.R. §§ 4.45, 4.59. The Veteran’s treatment records are consistent with the February 2013 VA examiner’s findings. In light of the above, the Board finds that higher ratings at any point during the period of the appeal are not warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel