Citation Nr: 1826111 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 09-29 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for postoperative right knee disability due to subluxation prior to November 13, 2009. 2. Entitlement to a separate evaluation in excess of 10 percent prior to November 13, 2009 for postoperative right knee disability due to limitation of extension. 3. Entitlement to a separate evaluation in excess of 10 percent prior to November 13, 2009 for postoperative right knee disability due to degenerative arthritis with limitation of flexion. 4. Entitlement to an evaluation in excess of 40 percent from January 1, 2011 to February 16, 2015, from April 1, 2015 to December 23, 2015, and since February 1, 2017, for total knee replacement, postoperative right knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1974 to May 1984. These matters come before the Board of Veterans Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs, Regional Office, located in Cleveland, Ohio (RO), which awarded an increased evaluation of 20 percent for postoperative right knee disability, effective from February 6, 2006, but denied any higher evaluation. His claim was continuously adjudicated, and the Veteran appealed the denial of higher rating. By the way of a July 2009 rating decision, the RO awarded a temporary total disability rating for convalescence following right knee surgery effective from February 10, 2009 to March 31, 2009, and thereafter, effective from April 1, 2009, renamed the 20 percent evaluation for postoperative right knee disability as due to subluxation, and awarded two separate 10 percent ratings based on arthritis with limitation of flexion and limitation of extension due to postoperative right knee disability. In a December 2009 rating decision, the RO awarded another temporary total disability rating for convalescence following right knee surgery effective from November 13, 2009 to December 31, 2009, and then assigned a 100 percent rating for total right knee replacement from January 1, 2010 to December 31, 2010. Thereafter, the RO assigned a 40 percent rating for total right knee replacement due to postoperative right knee disability (replacing the rating based on arthritis with limitation of flexion). In addition, in the December 2009 rating decision, the RO discontinued the separate 20 percent and 10 percent ratings, respectively, for subluxation and limitation of extension due to postoperative right knee disability, effective November 13, 2009. In subsequent rating decisions, the Veteran was assigned a temporary total rating for convalescence following right knee surgery, effective from February 26, 2015 to March 31, 2015, and again from December 23, 2015 to January 31, 2017 for surgical revision of right knee replacement. The 40 percent rating for right knee disability was continued from April 1, 2015 to December 22, 2015, and since February 1, 2017. In December 2016, the Veteran testified before the undersigned during a Board hearing held via videoconference capabilities. A copy of the hearing transcript has been associated with the claims. In February 2017, the Board remanded the matters on appeal as well as a claim for TDIU to the RO (via the Appeals Management Center (AMC)) for additional development, to include obtaining outstanding records of pertinent treatment and to afford the Veteran with a VA examination. A review of the claims folder shows there has been compliance with the remand directives, and no further action is needed. Following the development, in a February 2018 rating decision, the RO awarded entitlement to a TDIU, effective from November 18, 2014. The Veteran has not initiated an appeal as to that decision, and the matter is no longer on appeal. FINDINGS OF FACT 1. Prior to February 10, 2009, the Veteran's right knee disability was manifested primarily by pain, occasional swelling, tenderness, and diminished range of motion but well in excess of 45 degrees on flexion and 10 degrees on extension. 2. As of November 25, 2008, there is radiographic evidence of degenerative arthritis, without compensable limitation of motion, associated with postoperative right knee disability. 3. From April 1, 2009 to November 12, 2009, the Veteran's right knee disability was manifested by no more than pain, occasional swelling, and range of motion well in excess of than 30 degrees on flexion and 15 degrees on extension. 4. The Veteran underwent a right knee total arthroplasty on November 13, 2009. 5. From January 1, 2011 to February 25, 2015, the Veteran's right knee disability was manifested primarily by pain, occasional swelling, tenderness, extension to 5 degrees due to pain, and flexion to 80 degrees due to pain, consistent with intermediate residuals of total knee replacement. 6. The Veteran underwent a right knee arthroscopy on February 26, 2015. 7. From April 1, 2015 to December 22, 2015, the Veteran's right knee disability was manifested primarily by pain, occasional swelling, tenderness, full extension, and flexion to 100 degrees due to pain, consistent with intermediate residuals of total knee replacement 8. The Veteran underwent a right knee total arthroplasty revision on December 23, 2015. 9. Since February 1, 2017, the Veteran's right knee disability has been manifested primarily by pain, swelling, tenderness, full extension, and flexion to 95 degrees due to pain, consistent with intermediate residuals of total knee replacement CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 20 percent for post-operative right knee disability based on subluxation prior to February 10, 2009 and from April 1, 2009 to November 16, 2009 are neither met nor approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2017). 2. The criteria for a separate disability rating of 10 percent for postoperative right knee due to degenerative arthritis from November 25, 2008 to February 9, 2009 has been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003 (2017). 3. The criteria for a separate disability rating in excess of 10 percent for postoperative right knee due to degenerative arthritis with limitation of flexion from April 1, 2009 to November 16, 2009 are neither met nor approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260 (2017). 4. The criteria for a separate disability rating in excess of 10 percent for postoperative right knee due to limitation of extension from April 1, 2009 to November 16, 2009 are neither met nor approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5261 (2017). 5. The criteria for a disability rating in excess of 40 percent for postoperative right knee replacement from January 1, 2011 to February 25, 2015, from April 1, 2015 to December 22, 2015, and since February 1, 2017 are neither met nor approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5055, 5256, 5261, 5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist regulations. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Prior to initial adjudication, a letter dated in February 2006 satisfied the duty to notify provisions with regard to the Veteran's increased rating claim. The Veteran's available service treatment records, VA medical treatment records, service personnel records, and indicated private medical records relating to the Veteran's claimed right knee disability have been obtained. The Veteran has also had the opportunity to provide lay testimony before the undersigned in support of his claim. VA examinations adequate for adjudication purposes were provided to the Veteran in May 2006, March 2007, September 2007, April 2009, April 2012, September 2013, February 2015, June 2015, and May 2017 in connection with his increased rating claim. The examinations are adequate because they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe his right knee conditions in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U.S. 396, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. 2. Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In this case, the Veteran was originally awarded a 10 percent rating for postoperative right knee disability for internal derangement under Diagnostic Code 5257 in a January 1985 rating decision. On February 6, 2006, VA received the Veteran's claim for an increased rating for his postoperative right knee disability. The Veteran's disability rating was increased to 20 percent for postoperative right knee disability, effective from the date of claim. The Veteran required arthroscopic surgery on his right knee on February 10, 2009, and he was awarded a temporary total of 100 percent for one month convalescence following surgery until March 31, 2009, and the 20 percent rating was continued. He was also awarded two separate 10 percent ratings based on arthritis with limitation of flexion under Diagnostic Code 5003-5260 and limitation of extension under Diagnostic Code 5261 due to postoperative right knee disability, both effective from April 1, 2009. On November 13, 2009, the Veteran was rated at a temporary total of 100 percent for one month convalescence following right knee surgery, and then as 100 percent under Diagnostic Code 5003-5055, for one year following his total knee replacement until December 31, 2010, and thereafter, he was assigned 40 percent rating. Diagnostic Code 5257 sets forth a 20 percent rating requires moderate impairment due to recurrent subluxation or lateral instability. Severe impairment due to recurrent subluxation or lateral instability results in the maximum 30 percent evaluation. 38 C.F.R. § 4.71a (2017). The words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). Diagnostic Code 5003 governs degenerative arthritis, which must be established by x-ray evidence. Evaluations for degenerative arthritis shall be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. If, however, evaluation on this basis results in a noncompensable evaluation, the veteran shall be awarded a 10 percent rating for each major joint or group of minor joints affected by limitation of motion, to be combined but not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent evaluation, and the same with occasional incapacitating exacerbations warrants a 20 percent evaluation. 38 C.F.R. § 4.71a. The knees are considered major joints. 38 C.F.R. § 4.45. Diagnostic Code 5260 addresses limitation of motion with respect to flexion. Flexion limited to 60 percent warrants a noncompensable rating. A 10 percent evaluation requires flexion limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees. The maximum rating of 30 percent is reserved for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 addresses limitation of motion with respect to extension. Extension limited to 5 degrees warrants a noncompensable evaluation. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent rating requires extension limited to 15 degrees, while a 30 percent rating requires extension limited to 20 degrees. Extension limited to 30 degrees warrants a 40 percent evaluation. The maximum 50 percent evaluation requires extension limited to 45 degrees. 38 C.F.R. § 4.71a. Normal range of motion for the knee is from 140 degrees flexion to 0 degrees extension. 38 C.F.R. § 4.71, Plate II (2017). The Board also must consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate rating for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Several other Diagnostic Codes under 38 C.F.R. § 4.71a pertain to knee disabilities in addition to those above. They include: Diagnostic Code 5256 for ankylosis of the knee, Diagnostic Code 5258 for dislocated semilunar knee cartilage with frequent episodes of "locking," pain, and effusion into the joint, Diagnostic Code 5259 for symptomatic removal of the semilunar knee cartilage, Diagnostic Code 5262 for impairment of the tibia and fibula, and Diagnostic Code 5263 for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Mindful of the above, the Board turns to the evidence that is applicable to each of the staged periods involved in this appeal. Prior to February 10, 2009 VA received the Veteran's claim for an increased disability rating for his right knee disability in February 2006 and rated as it 20 percent disabling. During the period prior to February 10, 2009, the date of right knee arthroscopy, the Veteran received VA treatment for his right knee and he was afforded three VA examinations to evaluate the severity of his disability. A February 2006 VA treatment record shows that the Veteran presented with complaints of right knee pain with ambulation that was aggravated by climbing stairs. There was evidence of mild crepitus in the lateral right knee on clinical evaluation, but no evidence of swelling. It was noted that he had a history of gout flare-ups in his knees. X-ray film of the knee revealed findings of preserved joint space and no bone abnormalities, and the right knee was considered unremarkable. The Veteran was afforded a VA examination in May 2006 to evaluate the severity of his right knee disability. The examination report shows that the Veteran complained of intermittent pain in the lateral aspect of his right knee that lasted approximately 30-45 minutes and occurred three times week. He also reported symptoms of occasional stiffness and swelling, as well as symptoms of weakness and difficulty with climbing stairs. He wore knee brace. The Veteran reported he was currently employed and he worked 6.5 hours a day on his feet and he required occasional breaks due to discomfort in his knee. Clinical evaluation revealed the Veteran had range of motion limited from 0 to 75 degrees, with pain occurring throughout the range of motion, but became more severe at 75 degrees. There was no evidence of additional limitation of motion after repetitive use test. However, the Veteran informed the VA examiner that he felt he lost 50 percent of range of motion in his right knee during flare-ups of severe pain. The Veteran denied any history of instability, and his knee was evaluated as stable on clinical examination. X-ray film revealed no bone abnormalities involving the right knee. Diagnoses of gout and chondromalacia patellae, status post laparoscopic surgery were given. In a June 2006 addendum medical statement, the VA examiner concluded that the Veteran's gout was not caused by his in-service right knee injury, but exacerbations of gout do occur in response to injury and it is common for joint injury and/or surgery to exacerbate the underlying gout condition. Given the VA's examiner's statement, the right knee symptomology associated with gout cannot be differentiated from the Veteran's postoperative right knee disability. Subsequent VA treatment records dated in January 2007 show that the Veteran presented with complaints of increased right knee pain and swelling. Clinical evaluation showed he used a cane to ambulate and he had a limp. There was evidence of moderate swelling and warmth over the right knee, and evaluation of tenderness as well as limitation of flexion. He was provided with a steroid injection. A February 2007 report of contact shows that the Veteran informed VA that he felt his right knee disability warranted an increased rating. He was afforded with another VA examination in March 2007 to evaluate the severity of his disability. That examination report shows the Veteran complained of right knee pain, some weakness, occasional swelling, instability, locking, and fatigability. He used a cane and soft brace. The Veteran reported that his job required him to be on his feet which caused increased pain at end of day. He reported that he has missed work due to flare-ups knee gout. On clinical examination, the VA examiner observed that the Veteran had range of motion from 0 to 85 degrees, with pain reported as beginning at 45 degrees. However, the VA examiner also observed that the Veteran was able to sit with his knees bent at 90 degrees without discomfort. There was evidence of painful motion and flare-up of increased pain with activity, but the VA examiner found that the Veteran did not have additional limitation of motion after repetitive use. There was evidence of tenderness and some crepitus in the right knee, but the joint was evaluated as stable. X-ray of the right knee showed no significant degenerative changes or bone abnormalities. The VA examiner concluded that the Veteran's current increased right knee symptoms were attributable to gout flare-up. In a May 2007 statement, the Veteran stated he wanted an increased rating for his right knee disability. He was afforded with another VA examination in September 2007. In that examination report, the VA examiner noted that the Veteran reported a history of right knee pain with increased pain with activity and prolonged standing. It was noted that the medical records documented a recent history of gout flare-ups. Clinical evaluation of the right knee revealed evidence of pain on palpation, range of motion from 0 to 120 degrees on flexion with pain at extremes of range of motion, and extension limited to 5 degrees due to pain. There was no evidence of additional limitation of motion due to repetitive use and no evidence of joint instability. Previous x-ray films of the right knee were reviewed. A diagnosis of postoperative residuals with limitation of motion and pain was given. A June 2008 VA treatment record showed the Veteran presented with complaints of right knee pain that increased when getting up from a seated position. It was noted that the Veteran was recently treated for a flare-up of gout in his left knee. Clinical examination of the right knee revealed range of motion was from 4 to 125 degrees and there was evidence of limp and painful motion as well as difficulty with climbing stairs. He was prescribed physical therapy in order to improve strength in right knee. A November 25, 2008 VA treatment record noted that the Veteran presented with increased right knee pain and x-ray film revealed some narrowing of the joint space, more on the left than the right. In a December 2008 statement, the Veteran reported increased pain in his right knee. He stated that he needed to use knee braces and cane in order to ambulate. He felt that the pain medication for his knee pain did not help. A January 2009 VA orthopedic consultation report noted that the Veteran complained of right knee pain, with symptoms of popping and occasional catching. There was evidence of mild crepitus and pain on palpation, but no evidence swelling or instability in the right knee joint. The Veteran's right knee had full range of extension, but flexion was limited to 110 when pain begins. It was noted that an MRI report revealed evidence of menisci tears. Impressions of osteoarthritis and meniscal tears in the right knee were given. Collectively, the competent evidence for the appeal period before February 10, 2009 shows that the Veteran's right knee disability was manifested by pain, occasional swelling, tenderness, and diminished range of motion. The objective medical evidence does not indicate instability or subluxation in the right knee joint, let alone more than to a moderate degree of impairment. Instead, the record contains the Veteran's complaints of painful movement, occasional swelling, and instability. To that extent, a disability rating higher than 20 percent for the period before under Diagnostic Code 5257 is not warranted. See 38 C.F.R. § 4.71a. The medical evidence does demonstrate limitation of motion in the right knee but not to a compensable degree under Diagnostic Codes 5260 or 5261. See 38 C.F.R. § 4.71a. In this regard, clinical evaluation revealed that the Veteran's right knee had flexion in excess of 45 degrees and extension in excess of 10 degrees on range of motion testing throughout this period. Even being mindful of the Veteran's pain symptoms, there is no evidence indicating that the pain symptoms caused a degree of functional impairment that approached the degree of impairment that would be represented by compensable loss of knee flexion or compensable loss of knee extension. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. The Board has considered the range of motion findings in the March 2007, which suggest compensable degree of flexion; however, less than six months later the Veteran was evaluated with flexion limited to 120 degrees, which is well in excess of 45 degrees. The Board notes that the March 2007 VA examination range of motion test results coincide with the flare-up of the Veteran's gout as concluded by the VA examiner. While the Veteran's symptoms associated with gout cannot be differentiated from his service-connected right knee disability, the March 2007 diminished range of motion results only demonstrate a temporary flare-up of his overall symptomology that improved prior to the September 2007 VA examination. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). As such, the Board finds that the preponderance of the evidence is against a finding of separate compensable rating based on loss of motion in addition to the 20 percent rating based on subluxation for postoperative right knee disability is not warranted. See 38 C.F.R. § 4.71(a), Diagnostic Codes 5260 and 5261. The Board has also considered that separate ratings may be assigned for degenerative arthritis under Diagnostic Code 5003 and for subluxation or instability under Diagnostic Code 5257 without constituting pyramiding, as long as the separate rating is based on additional disability. VAOGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); see also 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Here, the radiographic evidence does not demonstrate that the Veteran has degenerative arthritis involving his right knee until November 28, 2008. The degenerative arthritis symptomatology was noted to be accompanied by noncompensable limitation of flexion (greater than 45 degrees). The x-ray films of the right knee prior to that date were unremarkable for abnormalities. As such, a separate 10 percent rating based on degenerative arthritis without compensable limitation of motion under Diagnostic Code 5003 is warranted as of November 28, 2008. See 38 C.F.R. § 4.71(a). From April 1, 2009 through November 12, 2009 VA treatment records show that the Veteran underwent a right knee arthroscopy on February 10, 2009. As discussed, he was assigned a temporary total 100 percent disability rating pursuant to 38 C.F.R. § 4.30 for convalescence over the period from February 10, 2009 (the date of the surgery) through March 31, 2009. Effective from April 1, 2009 through November 12, 2009, the disability rating assigned for the Veteran's postoperative right knee disability due to subluxation was returned to 20 percent and he was assigned two separate 10 ratings based on degenerative arthritis with limitation of flexion and limitation of extension. The report of an April 2009 VA knee examination shows the Veteran complained of daily pain and stiffness, swelling most of the time, and occasionally giving away in his right knee. It was noted that he was nine-weeks post-op from his February 2009 arthroscopy. The Veteran reported that he experienced increased pain with prolonged standing, sitting, and repetitive bending, and he felt that he had increased pain since the surgery. On clinical examination, the VA examiner observed that the Veteran had mild swelling and some tenderness in his right knee. Range of motion testing revealed he had flexion limited to 95 degrees with pain at the extreme and extension limited to 10 degrees due to pain. There was evidence of increased pain but not additional limitation of motion after repetitive use. There was no evidence of instability in the joint. It was noted that the previous MRI report was consistent with degenerative changes. The VA examiner opined that the Veteran's current symptoms are likely residuals of relatively recent knee surgery and do not demonstrate a permanent increase of his baseline symptoms. A June 2009 VA orthopedic consultation report noted that the Veteran presented with right knee pain and he had a history of an arthroscopy, without improvement of his symptoms. The Veteran described the knee pain as "debilitating" where it was worse at night and with activity. On clinical evaluation, the Veteran had range of motion from 0 to 110 degrees and his knee joint was evaluated as stable, but tender. There was evidence of crepitus. The Veteran was advised to undergo a total knee replacement. Overall, the evidence over the appeal period from April 1, 2009 to November 12, 2009 shows that the Veteran's right knee disability was manifested by degenerative arthritis with pain, swelling, tenderness, and loss of motion; however, his right knee disability was still not manifested by instability or subluxation on clinical examination. As such, a disability rating higher than 20 percent cannot be assigned pursuant to Diagnostic Code 5257 during this period. See 38 C.F.R. § 4.71(a). To that extent that the evidence for the period from April 1, 2009 to November 12, 2009 showed degenerative arthritis with loss of flexion, the evidence shows that the Veteran was able to maintain pain free right knee flexion to no less than 95 degrees (as shown during the April 2009 VA examination). Given the extent of flexion shown, even after taking the Veteran's pain symptoms into consideration, the criteria for a disability rating higher than 10 percent under Diagnostic Code 5003 based on limitation flexion under Diagnostic Code 5260 also are not met. See 38 C.F.R. § 4.71(a); see also Deluca, supra. Notably, the record reflects a finding of limitation of right knee extension to 10 degrees due to pain during the April 2009 VA examination, which supports the assignment of the separate 10 percent rating under Diagnostic Code 5261. See 38 C.F.R. § 4.71(a). A higher rating is not available because there was no limitation of extension to 15 degrees noted. See 38 C.F.R. § 4.71(a), Diagnostic Code 5261. Nor is a higher disability rating warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. As noted above, April 2009 VA examiner specifically performed repetitive testing and considered the effects of pain. In other words, even factoring the effect of pain and repetitive motion, the functional limitation does not more nearly approximate limitation of extension to 15 degrees to warrant a higher rating. Moreover, the subsequent VA treatment record notes that the Veteran had full range of extension on clinical evaluation. Accordingly, a separate disability rating in excess of 10 percent for limitation of extension for the period from April 1, 2009 to November 12, 2009 is not warranted. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206. From January 1, 2011 VA treatment records show that the Veteran underwent a right knee total arthroplasty on November 13, 2009. As explained above, the Veteran was accordingly awarded a temporary 100 percent rating pursuant to 38 C.F.R. § 4.30 for convalescence over the period from November 13, 2009 (the date of the surgery) through December 31, 2009, and then awarded a 100 percent disability rating pursuant to Diagnostic Code 5055, effective from the date of the surgery from January 1, 2010 to January 1, 2011. A 40 percent disability rating was assigned, also pursuant to Diagnostic Code 5055, effective from January 1, 2011. Diagnostic Code 5055 provides criteria for rating knee disabilities that require knee replacement surgery. Under those criteria, a 100 percent disability rating is assigned for one year following the surgery. Thereafter, the disability is to be rated as being no less than 30 percent disabling, but may be assigned a higher disability rating on the basis of demonstrated residual weakness, pain, or loss of motion consistent with the criteria under Diagnostic Codes 5256, 5261, or 5262. A 60 percent disability rating may also be assigned where the post-surgery evidence shows chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71(a). In a July 2010 statement received from the Veteran, he asserted that the November 2009 right knee arthroplasty was not successful and that he had the same amount of pain in his knee. Consistent with the Veteran's assertions, the VA medical records during the Veteran's period of convalescence show that he was complained of ongoing right knee pain and popping sensation, which increased with activity, and he had diminished range of motion in the right knee. X-rays taken in August 2010 revealed intact right total knee replacement, with some amount of lucency under patellae. It was felt that the Veteran's symptoms were attributed to some soft tissue irritation. The Veteran received additional physical therapy sessions. A December 28, 2010 VA orthopedic consultation report noted that the Veteran presented as 13 months status post total right knee replacement. He continued to complain of pain and crepitus on range of motion. Clinical examination of the right knee revealed a well-healed surgical incision and no evidence of swelling, subluxation, instability, or complaints of pain with patellar grind. There was evidence of tenderness over medial ridge of the femoral prosthesis. The Veteran's right knee had range of motion from full extension to 110 degrees of flexion. The x-ray film report showed findings of a well-placed component without signs of loosening or fracture. It was noted that the blood work ruled out an infection. He was advised to follow-up in six months. VA treatment records show that the Veteran continued to complaint of right knee pain and he received a steroid injection in March 2011. A May 2011 VA orthopedic consultation report noted that the Veteran had some relief of right knee pain following March 2011 steroid injection, but the pain had since returned. It was noted that the Veteran described the location of his knee pain as coinciding a large palpable scar tissue mass. The Veteran's right knee was evaluated as stable on clinical examination and there was no evidence of crepitus on range of motion. Conservative treatment to relieve pain associated with scar tissue was advised. Subsequent VA treatment records continue to show complaints of right knee pain. These records noted that infection was ruled out and diagnostic imagining showed prosthesis component was intact. The Veteran was assessed with chronic right knee pain. In April 2012, the Veteran was afforded with a VA knee examination to evaluate the severity of his disability. In that examination report, the VA examiner noted that the Veteran had a diagnosis of right total knee replacement and the medical records showed complaints of increased pain and swelling. On clinical evaluation, the Veteran had range of motion from zero to 100 degrees on flexion, with evidence of painful motion throughout. There was no limitation of extension in the right knee and no additional limitation of motion after repetitive use test. The VA examiner found that the Veteran's right knee disability resulted in functional loss due to less movement than normal, weakness, fatigability, painful movement, disturbance of locomotion, and interference with sitting and standing. There was no evidence of instability or subluxation, and the Veteran's total knee replacement was assessed as intermediate degree of residual weakness, pain and limitation of motion. Subsequent VA medical records continue to show complaints of right knee pain and crepitus on range of motion. There is evidence of swelling, tenderness, and decreased range of motion on both flexion and extension. X-ray and MRI reports revealed no evidence of malposition or loosening of the prosthesis component. See July and September 2012 VA treatment records. In December 2012, the Veteran felt his right knee pain was worse, and he described the pain as gritty, sharp, burning, and aching pain, with swelling and limitation of motion. The Veteran was afforded another VA knee examination in September 2013. The examination report shows that on range of motion testing, the Veteran had flexion limited to 100 degrees, when pain begins, and no limitation of extension. There was no evidence of instability or subluxation. The total knee replacement was assessed as an intermediate degree with residual weakness, pain and limitation of motion. A November 2014 VA orthopedic consultation report noted that the Veteran continued to complain of chronic right knee pain since the total knee replacement, which was worse with activity and sometimes associated with clicking. The Veteran felt his right knee had progressively worsened over time. It was noted that infection had been ruled out and bone scan report did not support loosening of component, and rheumatology clinic did not believe that gout was the source of the Veteran's right knee pain. The Veteran received a steroid injection and was later advised to undergo a right knee arthroscopy. The report of a January 2015 VA examination shows that on range of motion testing, the Veteran had flexion limited to 90 degrees, when pain begins, and extension limited to 5 degrees when pain begins, but no additional loss of motion after repetitive use testing. However, symptoms of pain and weakness were felt to result in functional loss, of additional limitation of 10 degrees on flexion, during flare-ups. The VA examiner was unable to test joint stability due to the Veteran's discomfort. The Veteran's total knee replacement was assessed as an intermediate degree with residual weakness, pain and limitation of motion. On February 26, 2015, the Veteran underwent a right knee arthroscopy with excision of the patellar clunk. VA treatment records for post-surgical follow-up in March 2015 note that the Veteran felt he was doing much better than he was prior to surgery. He had begun physical therapy. There was mild knee effusion on clinical examination and range of motion was from zero to 100 degrees. A June 2015 VA treatment record noted that the Veteran complained of right knee pain and clunking, as well as he had difficulty with climbing stairs. There was evidence of swelling and pain on palpation of the knee, but the Veteran had full range of motion. A June 2015 VA knee examination shows that the Veteran had range of motion from zero to 100 degrees, when pain begins and there was evidence of painful motion and tenderness. The joint was evaluated as stable. The Veteran's total knee replacement was assessed as intermediate residuals due to pain, weakness, and limitation of motion. Subsequent VA treatment records note complaints of right knee pain and clunking symptoms on range of movement. X-ray film revealed evidence of loosening of the patellar component. Surgical revision of the patella due to mechanical loosening was advised. On December 23, 2015, the Veteran underwent a revision of right total knee replacement. VA treatment records during the convalescence period show that the Veteran continued to complain of right knee pain and physical therapy was not providing relief of symptoms. The Veteran felt that his symptoms had never improved following the revision surgery. See August 2016 VA treatment record. During the January 2017 Board hearing, the Veteran testified that his right knee pain has not improved with the total knee replacement or after revision of the total knee replacement. He reported that he continued to have range of motion that was less than it should be following a total knee replacement. He has continued with physical therapy but without improvement in range of motion or the level of pain and discomfort in the right knee. He described in his right knee pain as severe in nature. The report of a May 2017 VA knee examination shows that the Veteran had range of motion from 0 to 95 degrees, and no additional loss of range of motion after repetitive use. There was objective evidence of painful motion on extension and flexion, pain with weight bearing, tenderness, and swelling. It was felt that the Veteran's disability resulted in functional loss due to disturbance of locomotion and interference with standing. He had normal muscle strength and there was no evidence of muscle atrophy, ankylosis, or instability. The Veteran's total knee replacement was assessed as intermediate residuals due to pain, weakness, and limitation of motion. Subsequent VA treatment records continue to show the Veteran's complaints of right knee pain that felt like sand grinding which impacted his daily activities, such as climbing stairs or walking more than a half block without rest. Clinical evaluations revealed no evidence of instability, crepitus, or swelling, and he had range of motion from 0 to 115 degrees due to pain. See October, November and December 2017 VA treatment records. Despite the assertions of pain, swelling, and diminished range motion expressed by the Veteran, there is no evidence in the record that shows that the Veteran's right knee disability was productive of instability or diminished right knee extension or flexion such as to warrant the assignment of a disability rating higher than 40 percent over the periods from January 1, 2011 to February 25, 2015, from April 1, 2015 to December 22, 2015, and since February 1, 2017. Accordingly, the criteria for a disability rating higher than 40 percent during those periods are not met. See 38 C.F.R. § 4.71(a), Diagnostic Code 5055. In this regard, VA medical records consistently show the Veteran's complaints of pain, swelling, lack of endurance, and crepitus or "popping" sensation, with daily flare-ups that result in increased pain and diminished range of motion. The Veteran even testified that his right knee pain was severe in nature. Still, the symptoms reported and observed during each of the five VA examinations were not considered by the VA examiners to rise to the level of "severe painful motion or weakness" as contemplated by 60 percent disability rating under Diagnostic Code 5055. See 38 C.F.R. § 4.71(a). Moreover, the Veteran's range of motion was limited at most to 80 degrees on flexion and limited at most to 5 degrees on extension (as shown during the January 2015 VA examination). Given the extent of motion demonstrated during the examination, the criteria for a disability rating higher than 40 percent under Diagnostic Code 5256 (ankylosis in flexion between 20 and 45 degrees) and Diagnostic Code 5260 (extension limited to 45 degrees) are not met. See 38 C.F.R. § 4.71(a). For the portion of the appeal period being discussed here, the Board places considerable weight on the reported findings from the May 2017 VA knee examination. The United States Court of Appeals for Veterans Claims (Court) has held that "the final sentence of [38 C.F.R.]§ 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In order for an examination report to be adequate it must include testing on active motion, passive motion, weight-bearing, non-weight bearing, and where possible, range of motion measurements of the opposite undamaged joint. Id. The May 2017 VA examination is adequate. In that regard, there is no indication that active and passive ranges of motion were not observed during the examination. Indeed, the examiner noted that the Veteran was reporting right knee pain during weight-bearing and active motion specifically. The examiner noted that the pain symptoms were productive of functional loss. Moreover, the examination included objective examination and measurements of the motion in the Veteran's opposite left knee, thereby permitting a comparison of both of the Veteran's knees. In sum, the findings reported in the May 2017 VA examination report provide sufficient information with which to evaluate the degree of impairment associated with the Veteran's right knee disability. In summary, the preponderance of the evidence shows that the Veteran is not entitled to a disability rating in excess of 20 percent for a post-operative right knee disability due to subluxation during applicable periods prior to November 13, 2009; however, the evidence does support that the Veteran is entitled to a separate 10 percent disability rating for degenerative arthritis from November 28, 2008 to February 9, 2009. Further, the preponderance of the evidence shows that the Veteran is not entitled to a separate disability rating in excess of 10 percent for a postoperative right knee disability due to degenerative arthritis with limitation of flexion for the period from April 1, 2009 to November 12, 2009 or a separate disability rating in excess of 10 percent for a postoperative right knee disability due limitation of extension for the period from April 1, 2009 to November 12, 2009. Finally, the preponderance of the evidence shows that the Veteran is not entitled to a disability rating in excess of 40 percent over the period from January 1, 2011 to February 25, 2015, from April 1, 2015 to December 22, 2015, and since February 1, 2017 for postoperative right knee disability, status post total knee replacement. ORDER Entitlement to an evaluation in excess of 20 percent for postoperative right knee disability due to subluxation prior to November 13, 2009, is denied. Entitlement to a separate evaluation 10 percent from November 25, 2008 to February 9, 2009 for postoperative right knee disability due to degenerative arthritis, is granted Entitlement to an evaluation in excess of 10 percent prior to November 13, 2009 for postoperative right knee disability due degenerative arthritis with limitation of flexion, is denied. Entitlement to a separate evaluation in excess of 10 percent prior to November 13, 2009 for postoperative right knee disability due to limitation of extension, is denied. Entitlement to an evaluation in excess of 40 percent from January 1, 2011 to February 16, 2015, from April 1, 2015 to December 23, 2015, and since February 1, 2017, for total knee replacement, postoperative right knee disability, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs