Citation Nr: 19141010 Decision Date: 05/28/19 Archive Date: 05/28/19 DOCKET NO. 08-39 594 DATE: May 28, 2019 ORDER Entitlement to a combined rating in excess of 30 percent prior to June 7, 2011, for a right knee disability (formerly residuals of a meniscectomy of the right knee and posttraumatic arthritis of the right knee), is denied. Entitlement to a 60 percent rating from August 1, 2012, for the post-operative residuals of a total right knee replacement is granted, subject to the laws and regulations governing the award of monetary benefits. (The issues of entitlement to service connection for a left hand disorder, claimed as due to service-connected right total knee replacement; entitlement an effective date prior to June 7, 2011, for a scar as a post-operative (PO) residual of a right total knee replacement; and entitlement to an initial compensable rating for a scar as a PO residual of a total right knee replacement are addressed in a separate decision.) FINDINGS OF FACT 1. Prior to the Veteran’s June 7, 2011, total right knee replacement, he did not have a compensable degree of limited right knee flexion or extension, although he had painful right knee motion, and did not have locking or severe instability of the right knee. 2. From August 1, 2012, and thereafter, the Veteran’s post-operative residuals of a total right knee replacement results in severe painful motion of the right knee. CONCLUSIONS OF LAW 1. The criteria for a combined rating in excess of 30 percent for a right knee disability (formerly residuals of a meniscectomy of the right knee and posttraumatic arthritis of the right knee) prior to June 7, 2011, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5257, 5259. 2. The criteria for a 60 percent rating, but not higher, for post-operative residuals of a total right knee replacement from August 1, 2012, and thereafter, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has recognized active duty service from September 14, 1972 to September 21, 1981. The Veteran was notified by letter of April 17, 2019, of an administrative decision that his period of active military service from September 22, 1981, to July 10, 1985, was under dishonorable conditions and was a bar to VA benefits under 38 C.F.R. § 3.12(c)(2). The Veteran was informed of his rights to further adjudicatory review and of his appellate rights, but he did not request further review and he has not appealed that determination. This appeal to before the Board of Veterans’ Appeals (Board) arose from decisions of a Department of Veterans Affairs (VA) Regional Office. Historically, a May 2002 rating decision granted an increase from 10 percent (which had been in effect since June 8, 1992) for residuals of a right knee meniscectomy to 20 percent, effective January 3, 2002; and granted service connection for right knee posttraumatic arthritis, evaluated at 10 percent, effective January 3, 2002. This action resulted in an increase in the combined disability evaluation for the Veteran’s right knee disability from 10 percent to 30 percent, effective January 3, 2002. A December 2007 rating decision continued the combined 30 percent rating (based on a formulation of 20 percent under Diagnostic Codes (DCs) 5257-5259 for symptomatic cartilage removal with instability, and 10 percent under Code 5010 for arthritis) for the Veteran's right knee disability (and these ratings had been in effect since January 3, 2002). The Veteran testified at a January 2010 Board hearing as to the proper rating for his service-connected right knee disability. In April 2010, the Board remanded the issue of entitlement to a combined rating in excess of 30 percent for the right knee disability to obtain outstanding VA clinical records and an examination to assess the severity of the right knee disability. In March 2012, the Board remanded the issue of entitlement to a combined rating in excess of 30 percent for a right knee disability. At that time, the Board observed that a June 2011 correspondence raised the issue of entitlement to a temporary total convalescence rating following a total right knee replacement, which was inextricably intertwined with the issue of the combined rating for the right knee disability. The remand directed the Veteran to identify and provide releases to allow VA to obtain all relevant records of the right knee replacement and follow-up care, and for the Agency of Original Jurisdiction (AOJ) to adjudicate the matter of entitlement to a temporary total rating under 38 C.F.R. § 4.30. A July 30, 2012, rating decision granted a 100 percent temporary total rating from June 7, 2011 (the date of right knee replacement) to July 31, 2011, (the last day of the initial grant of the 1-month total rating under 38 C.F.R. § 4.30), with the 100 percent schedular rating for the prescribed 1-year period commencing on August 1, 2011, and ending on July 31, 2012, pursuant to the Note following DC 5055. 38 C.F.R. § 4.71a. Thereafter, a 30 percent schedular rating was assigned, effective from August 1, 2012, under DC 5055 (knee replacement and, replacing the prior 20 percent rating under DC 5259 symptomatic meniscectomy residuals). The 10 percent rating for right knee posttraumatic arthritis, under DC 5010, was confirmed and continued. This action resulted in a disability rating of 100 percent from June 7, 2011, and a combined disability rating of 40 percent from August 1, 2012. A September 20, 2012, rating decision assigned a 50 percent rating based on limitation of extension of the right knee (and which was the highest rating assignable based on limited extension to 45 degrees or more under DC 5261), effective August 1, 2012 (the day after termination of the 100 percent convalescence rating). That rating decision reflects that the rating was for “residuals, meniscectomy, right knee.” This 50-percent rating took the place of the 30 percent rating under DC 5055. The 10 percent rating for right knee posttraumatic arthritis, under DC 5010, was confirmed and continued. In pertinent part, this action resulted in a combined disability rating of: (1) 30 percent since January 3, 2002; (2) 100 percent (based on convalescence under 38 C.F.R. § 4.30 and prosthetic replacement of the right knee joint under DC 5055) since June 7, 2011; and (3) 60 percent since August 1, 2012. Of record is a rating decision code sheet dated January 24, 2013, (no narrative summary is of record) which reflects that clear and unmistakable error (CUE) had been found and explains that the 10 percent rating for posttraumatic arthritis of the right knee should have been closed out by the July 30, 2012, rating decision which granted a total evaluation for a total right knee replacement. The evaluation of the total right knee replacement, rated 30 percent, should have been confirmed and continued by the September 20, 2012 rating decision. Of record is a narrative summary of a rating decision of February 11, 2013, (no rating decision code sheet of that date is of record) which reflects that clear and unmistakable error (CUE) was found in the evaluation of the total right knee replacement and the evaluation was proposed to be decreased to 30 percent disabling no earlier than July 1, 2013. In the “Reasons for Decision” it was stated that at the time of the July 30, 2012, rating decision a 20 percent rating was assigned for right knee “instability” and 10 percent for arthritis with painful right knee motion, for a combined 30 percent rating. The July 30, 2012, rating decision granted service connection for a total right knee replacement which was assigned a temporary total rating based on convalescence from June 7, 2011. An evaluation of 30 percent was properly assigned as of August 1, 2012, as the minimum rating following the total right knee replacement. It was noted that when the total rating based on convalescence was assigned, the 10 percent rating for right knee arthritis with painful motion should have been closed out. However, it was not, and a combined evaluation of 40 percent was erroneously assigned effective from August 1, 2012. The February 11, 2013, rating decision further reflects that the September 20, 2012, rating decision erroneously increased the rating for the total right knee replacement to 50 percent based on limited right knee extension (under DC 5260). However, that rating was not supported by the evidence of record which showed that the Veteran had right knee motion of zero (0) to 80 degrees. Also, the 10 percent rating for right knee arthritis with painful motion was erroneously continued but should have been closed out. Thus, the combined evaluation was erroneously increased to 60 percent effective from August 1, 2012. Because of these matters, the disability evaluation was to be reduced because of CUE in the previous rating decision. It was further noted that the 100 percent convalescence rating was properly assigned following the total right knee replacement as of June 7, 2011, date of hospital admission, and a 30 percent schedular rating was properly assigned under DC 5055 (for rating PO knee replacement) as of August 1, 2012, the first day of the month following the 13-month total rating. Thus, the evaluation for the total right knee replacement was proposed to be reduced to 30 percent (under DC 5055) no earlier than July 1, 2013. The medical evidence did not support a rating of 60 percent under DC 5055. This action would result in a combined disability rating of 30 percent. The Veteran was informed of the February 11, 2013, proposed rating reduction by RO letter of that same date. The Veteran’s Notice of Disagreement (NOD) as to the proposed reduction was received in March 2013. A May 21, 2015, rating decision determined that there was clear and unmistakable error (CUE) in the rating of the total right knee replacement and the rating was proposed to be reduced to 30 percent no earlier than October 1, 2015. That rating decision reflects that at the time of the July 30, 2012, rating decision the Veteran had a combined right knee rating of 30 percent, based on a 20 percent rating for right knee instability and a separate rating of 10 percent for arthritis with painful right knee motion. The July 30, 2012, rating decision granted service connection for a total right knee replacement, which was rated 100-percent effective from June 7, 2011, for 13 months following the knee replacement. A rating of 30 percent was properly assigned effective from August 1, 2012, as the minimum rating following prosthetic right knee replacement (under DC 5055). When the total rating was assigned, the 10 percent rating for right knee arthritis should have been closed out. However, it was not, and a combined rating of 40 percent was erroneously assigned effective from August 1, 2012. The May 21, 2015, rating decision further reflects that the September 20, 2012, rating decision erroneously increased the rating for the total right knee replacement to 50 percent based on extension of the right knee limited to 45 degrees or more (under DC 5261). However, that rating was not supported by the medical evidence of record which showed that the Veteran had right knee range of motion of zero (0) to 80 degrees. In addition, the 10 percent rating for right knee arthritis was continued and not properly closed out. Thus, the overall rating was erroneously increased to 60 percent disabling effective from August 1, 2012. Thus, because the medical evidence did not support a 60 percent rating (under DC 5055), the rating for the total right knee replacement was proposed to be reduced to 30 percent no earlier than October 1, 2015. The Veteran was notified of the proposed reduction by RO letter of June 18, 2015. A January 19, 2016, rating decision severed service connection for arthritis of the right knee, effective from April 1, 2016; and reduced the 50-percent rating for PO residuals of the total right knee replacement to 30 percent effective from April 1, 2016. An April 6, 2017, rating decision granted service connection for a PO right knee scar, which was assigned an initial noncompensable disability rating, effective from June 7, 2011. The Veteran testified at an August 2018 Board hearing as to the proper rating for his service-connected right knee disability. At the August 2018 hearing, and because he had previously testified at a Board hearing (in January 2010) as to the proper rating for the service-connected right knee disability, the Veteran waived his right to a third Board hearing as to the issue of the proper rating for his service-connected right knee disability. A December 12, 2018, rating decision denied service connection for a sensorineural hearing loss but granted service connection for tinnitus, which was assigned an initial 10 percent rating effective from March 14, 2018. This action resulted in an increase in the combined disability rating from 30 percent to 40 percent effective from March 14, 2018. Background Service treatment records (STRs) reveal that four years prior to a right knee arthrotomy with partial right medial meniscectomy in September 1983 the Veteran had had a twisting right knee injury with documented tears of the right medial and lateral menisci. The operative report shows that during the surgery it was noted that the displaced peripherally detached medial meniscus was excised. The anterior cruciate ligament was absent. There was no overt tear of the lateral meniscus. VA outpatient treatment (VAOPT) records show that in January 2002 the Veteran was seen for increasing right knee pain. He reported that since his 1983 right knee surgery the knee had been unstable, and that he usually wore a brace but could not currently wear it because of pain and swelling. On examination there was slight swelling of the right knee. There was full range of motion of that knee but the right knee joint was unstable. On VA orthopedic consultation examination in March 2002 the reported having constant right knee pain, which had increased in the last four months. He had not had a recent injury. He had not had further surgery since the open surgery with meniscectomy in 1983. He had not had locking but reported that the right knee gave way about once a week. Aggravating activities were weight-bearing and rotation. Improving factors were keeping the knee immobile. His rated his pain as being 4 on a scale of 10, with his worst pain being a 5. On examination he stood erectly and walked well without assistance. As to the knee, there was no deformity, discoloration, edema, effusion, tenderness, atrophy, instability or crepitus. Drawer’s sign and McMurray’s sign were negative. He had active full range of motion. He had scars compatible with his history of right knee surgery. X-rays revealed osteophyte formation at the edges of the articular surfaces and spurring of the tibial spine, consistent with degenerative changes. The joint space was well maintained. There was minimal calcification of the cartilage representing early chondrocalcinosis. The impression was mild to moderate degenerative changes. VAOPT records show that a right knee X-ray was taken in May 2005 due to a clinical history of pain and instability. The X-ray revealed mild degenerative joint disease (DJD) and narrowing of the medial joint space. A 2007 VAOPT rheumatology consultation record noted that the Veteran had a known history of DJD and instability. He was to be assessed for further therapeutic injection with “steroids/Synvisc” for pain control. Another VAOPT in 2007 noted that he was evaluated for use of treatment modalities of acupuncture and physical therapies for better control of knee pain. An August 24, 2007 VAOPT record reflects that after the Veteran’s second Synvisc injection in January 2006 he had not had much relief of pain and he reported that he had more right knee laxity and instability. On examination he had joint laxity and mild crepitus. The assessment was that he had resting pain and was unable to do many activities that he previously enjoyed. Ideally, he needed a right knee replacement. His knee was injected with steroidal medication. The Veteran’s claim for an increased rating for his service-connected right knee was received on September 14, 2007. On VA examination in October 2007 an examiner reviewed the Veteran’s claim file. The Veteran reported that his inservice right knee surgery had not provided much relief. He complained of severe and constant right knee pain. He presented with a moderately antalgic gait. He reported that he used a right knee brace but did not present with a right knee brace at the time of the examination. He denied use of a cane, crutches, walker or wheelchair. As to functional impairment, his occupation as an engineer, and as to the activities of daily living, the Veteran reported, and the examiner found that the Veteran had difficulty in prolonged standing for more than 15 minutes, walking for more than 10 minutes, walking up and down steps, and climbing and squatting due to right knee pain. On physical examination, as measured by a goniometer, the Veteran had active flexion and extension from 0 to 150 degrees. There was moderate pain of the right knee from 140 to 150 degrees. With repetitive use, times threes, the range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance. He denied having any flare-ups of his right knee condition. There were no clinical signs of instability at the time of the examination. There was mild to moderate crepitus with moderate tenderness along the anterior and lateral aspects of the right knee. Drawer’s and McMurray’s signs were negative. There was mild swelling. There were no recent diagnostic studies for review. The diagnosis was residuals of status post (SP) right knee meniscectomy with right knee strain with history of traumatic arthritis, moderately active on examination. As to functional impairment At the January 2010 Board hearing, the Veteran testified that on examination in October 2007 he had had pain on flexion of the right knee. Also, at the examination he was able to squat but only by holding on to something, and the pain was excruciating. He always had right knee pain and was now participating in a pain management program and had been participating in it for quite a few years. He always had right knee pain. Although he was not wearing his right knee brace at the time of the 2007 examination, he was wearing it at the current travel Board hearing. He had had injections of “Synvisc” into his right knee about three (3) years ago due to right knee arthritis. However, this made his right knee unstable. It was very difficult for him to put any type of weight on his right knee because of his instability. He had also had injections of cortisone and had taken other medications to alleviate his pain. He had been informed that a right knee replacement might be needed. The Veteran further testified that he had used a TENS unit, but it had not provided relief of pain. He had also applied “flexa” patches directly to the right knee, but these also had not helped. In his work he was required to be mobile and had to transverse stairs in a four-story building which was very painful and had become more so due to right knee arthritis. Traversing stairs was also difficult due to instability. He was reluctant to have a right knee replacement because he had no job protection if he missed too much work. The presiding Veterans Law Judge noted that the right knee was currently rated 20 percent for instability under DC 5257 and 10 percent for limited motion but that the 2007 examination had not found instability and inquired whether any of the Veteran’s VA clinical records documented his instability, to which the Veteran replied in the affirmative. As to the finding of 150 degrees of motion on the 2007 examination, which was a finding as to which the presiding Veterans Law Judge expressed some reservation, the Veteran reported that he had pain once he was past 15 degrees of flexion. The Veteran reported that all of his treatment for his right knee was by VA. Following and pursuant to an April 2010 Board remand, the Veteran underwent a VA examination of his right knee in January 2011, at which time the claim file was reviewed. The Veteran reported that his right knee condition had worsened since his military service. The examiner reported that there was no unusual shoe wear pattern of either shoe which would suggest an abnormal weight-bearing. The Veteran complained of moderate to severe constant right knee pain, with moderate to severe constant stiffness and weakness of the right knee. He presented with a moderately slow antalgic gait and wore a right knee brace. He denied using a cane, crutches, walkers or wheelchairs. He took Percocet pills, 4 times daily, for right knee pain which he reported was helpful and had no side effects. Occupationally and in his activities of daily living, he had difficulty standing for more than 5 minutes, walking 10 minutes, walking up and down stairs, climbing and squatting due to right knee pain. On physical examination, using a goniometer, the Veteran had active and passive right knee motion from 0 to 60 degrees. There was evidence of moderate to severe right knee pain with flexion and extension at 50 degrees to 60 degrees. With repetitive use, with 3 repetitions, motion did not elicit additional pain, fatigue, weakness or lack of endurance or any additional loss of function of the right knee. There was no right knee instability. Drawer’s and McMurray’s signs were negative. There was no crepitus on palpation. There was mild right knee swelling but no heat, redness, or drainage. There was moderate tenderness along the anteromedial and lateral aspects of the right knee. There was moderate weakness and moderate stiffness but no deformity, giving way, locking, effusion, dislocation or subluxation. It was noted that X-rays in September 2009 had revealed a worsening of his right knee arthritis. The diagnosis was a right knee strain with arthritis, SP surgery with range of motion abnormality. The Veteran underwent a total right knee replacement on June 7, 2011. Following a March 2012 Board remand, the Veteran was afforded a VA examination of his right knee on August 21, 2012, at which time the examiner reviewed the Veteran’s claim file. The Veteran reported that his total right knee replacement had given him approximately 10 percent improvement in his right knee condition. The examiner noted that there was no unusual shoe wear pattern on either shoe to suggest abnormal weight-bearing. The Veteran complained of daily flare-ups which caused incapacitation, not requiring bedrest, that lasted approximately ½ day. On examination, with testing by a goniometer, the Veteran had range of motion from 0 to 80 degrees. There was evidence of moderate right knee pain, evidenced by a wincing facial expression, with flexion and extension from 70 to 80 degrees. Repetitive use testing, of three repetitions of motion, did not elicit additional pain, fatigue, weakness or lack of endurance, and the range of motion remained unchanged. He had residual signs and symptoms of his meniscectomy. As to functional loss or additional limitation of motion, his excursion, strength, speed, coordination, and endurance were all normal. Also, as to functional loss or impairment, occupationally and as to activities of daily living, he had difficulty in standing for more than 15 minutes, walking 10 minutes, walking up and down stairs, and climbing as well as squatting due to pain. There was weakened movement and decreased motor function of 4/5 in flexion and extension. There was no excess fatigability or incoordination. There was moderate pain on motion but no swelling, deformity, atrophy of disuse or instability with all tests for joint instability being negative. There was no evidence of patellar subluxation or dislocation. He had a mild to moderate antalgic gait. There was no functional impairment regarding sitting but he had difficult in standing and weight-bearing for more than 15 minutes due to right knee pain. On palpation, there was evidence of mild to moderate pain and tenderness along the lateral and medial aspects of the right knee. There was no tibiofibular impairment. The examiner noted that the Veteran had no history of meniscal dislocation and no complaints of locking. He had subjective complaints of moderate but constant pain and moderate constant stiffness, as well as weakness of the right knee but no complaint of joint effusion. The Veteran presented with a mild to moderate antalgic gait. He used a right knee brace constantly and planned to have his current brace re-fitted. He denied using a cane, crutches, walkers or wheelchair. His balance and propulsion were normal. A January 2016 VAOPT record reflects that the Veteran had a twisting injury, with possible dislocation, of his left knee, for which he was given a knee brace. Also, in January 2016 it was noted that he attended a Pain Management Clinic and had taken Oxycodone for 30 years because nothing else worked. In March 2016 it was reported that he had had a sprain of the medial collateral ligament of his left knee. He received a corticosteroid injection into the left knee in April 2016. However, and also in April 2016, the Veteran sought treatment for a right knee disability. It was noted that he had been on large amounts of narcotics for his right knee for a long time. A May 2016 VA Progress note shows that the Veteran complained of pain at level 10. He had pain in which neck that radiated down his arms with hand weakness and numbness as well as low back pain that radiated down his legs, as well as right knee pain. His sciatic symptoms caused spasms and difficulty walking. He was taking Oxycodone for pain. The clinical impression was that the Veteran had cervical radiculopathy as well as lumbar radiculopathy. in June 2016 the Veteran’s complaints included right hip pain that radiated down his right leg to his right foot. He was taking Percocet and Oxycodone. A June 2016 VAOPT record shows that the Veteran was seen for left knee symptoms. He had arthritis of the left knee lateral compartment and admitted having instability of the left knee, for which he wore a left knee brace when working that provided some help. He was not yet ready for a left knee replacement. After reviewing left knee X-rays the impressions were advanced osteoarthritis of the lateral compartment with significant valgus deformity and patellofemoral pain syndrome with significant weakness. On VA examination on March 24, 2017, the Veteran’s VA electronic medical records were reviewed. The examiner reported that the Veteran’s diagnoses as to both knees were bilateral knee strains, bilateral meniscal tears, bilateral anterior cruciate ligament tears, bilateral knee osteoarthritis, and right knee instability. The Veteran did not report having flare-ups of his knee. He reported having functional loss or impairment which he described as bilateral knee pain and greater on the left than the right, associated with kneeling, squatting, sitting 15 minutes, standing or walking 5 minutes, or climbing less than one flight of stairs. On physical examination the Veteran had painful right knee flexion which caused functional loss. Right knee flexion was to only 100 degrees but there was full extension. He had pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. However, there was no objective evidence of right knee crepitus. He also had left knee pain on flexion, which was limited to 120 degrees, and left knee pain on weight-bearing, with objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran could perform repetitive use testing of each knee but there was no additional functional loss or limited motion. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use of each knee over a period of time. He had full strength in flexion and extension of each knee, and there was no muscle atrophy. He had no history of recurrent subluxation, lateral instability or recurrent effusion of either knee. All tests of anterior, posterior, medial, and lateral instability in each knee was normal. He did not have recurrent patellar dislocations or any tibial and/or fibular impairments of either knee. There was no evidence of pain on passive range of motion testing and evidence of pain with non-weightbearing. It was noted that the left knee was not undamaged; rather, he had a bilateral knee condition with associated functional loss. He had had a right meniscal tear. He had had a left meniscal tear, with frequent episodes of joint pain. He had had a right knee replacement, and had intermediate degrees of residual weakness, pain or limitation of motion. The Veteran regularly used a brace on each knee, but he did not have such functional impairment that there was no effective function other than that which would be equally well served by an amputation. Arthritis had been documented in each knee. It was reported that a November 2007 right knee MRI had yielded finding of SP anterior cruciate ligament (ACL) tear and medial meniscectomy. The examiner reported that the findings were consistent with and contributed to the Veteran’s reported symptoms and functional incapacity. His knee condition impacted this ability occupationally, because it precluded an occupation requiring kneeling, squatting, constant, uninterrupted sitting, or prolonged or extensive weightbearing. Relative to this condition alone, given appropriate accommodations, such as frequent breaks as needed, the Veteran might nonetheless be reasonably expected to function otherwise in a sedentary capacity. VAOPT records show that in April 2017 the Veteran reported using a “BIOWAVE” daily for his knee, back, and arm and it provided some relief of pain. A November 2017 VAOPT record shows that the Veteran had an evaluation for Long-Term Opioid Therapy due to pain in his knees. The Veteran testified at an August 2018 Board hearing as to the proper rating for his service-connected right knee disability. He testified that he had originally dislocated his right knee during service and he eventually had surgery during service in 1983 when torn cartilage was removed. He first sought VA treatment in the 1990s. Rating Principles Disability ratings are determined by the application of rating criteria VA’s Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity, with separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7; see also 38 C.F.R. § 4.21. See 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Also, the alleviating effects of medication may not be considered in schedular ratings unless explicitly provided in the applicable schedular rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. Also, a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (noting that such improvement is “relevant to the appellant's overall disability picture”). Evaluating musculoskeletal disabilities based on limitation of motion, requires consideration of functional loss caused by pain or other factors listed in 38 C.F.R. § 4.40 that can occur during flare-ups or after repeated use and, so, may not be reflected on range-of-motion testing. Nonetheless, even when the background factors listed in §§ 4.40 or 4.45 are relevant, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). 38 C.F.R. § 4.45 requires consideration also be given to motion that is less or more than normal, weakened, and painful as well as excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Also, § 4.59 requires consideration of pain “on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Consideration should also be given to the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups, including from the veteran when a flare-up is not observable on examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 38 C.F.R. § 4.71a, DC 5003 provides that degenerative arthritis is rated on the basis of limitation of motion under appropriate diagnostic codes for the specific joint or joints involved, but when limited joint motion is noncompensable, a 10 percent rating is warranted for limited motion of a major joint or group of minor joints. With X-ray evidence of arthritis of two or more joint groups without compensable limitation of motion a single disability evaluation of 10 percent may be assigned. However, where, the limited motion of a specific joint or joints involved is noncompensable, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Because DC 5003 requires that “satisfactory of evidence of pain” be “objectively confirmed,” a Veteran's testimony, alone, is not enough. For the minimum compensable rating for motion which is painful but not actually limited to a compensable degree, a claimant’s bare statement is not satisfactory evidence of painful motion. Petitti v. McDonald, 27 Vet. App. 415 (2015) (per curiam) (holding that painful motion may be “objectively confirmed” by either a clinician, including a claimant's assertion of painful joints that is confirmed by a clinician’s statement there is a history of "recurrent" joint pain, or by a layperson. Thus, satisfactory lay evidence includes lay descriptions from other than the Veteran of painful motion; i.e., lay observations of observed visible behavior or facial expressions, e.g., wincing, during painful motion, difficulty walking, standing, sitting, or undertaking other activity. Petitti v. McDonald, 27 Vet. App. 415 (2015) (per curiam). The holding in Mitchell v. Shinseki, 25 Vet. App. 32, 40-41 (2011) that painful motion without functional loss did not constitute compensably limited motion, was premised on 38 C.F.R. §§ 4.40, 4.45, but in Burton v. Shinseki, 25 Vet. App. 1, 5-6 (2011) it was held that painful motion without functional loss did warrant a minimum compensable evaluation under 38 C.F.R. § 4.59. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Compensating a claimant for separate functional impairment under DC 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997) held that arthritis and instability of the same knee may be rated separately under DCs 5003 and 5257. Subsequently, VAOPGCPREC 9-98 further explained that if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (holding that separate ratings under DC 5260 for limitation of flexion of the knee and DC 5261 for limitation of extension of the knee may be assigned). “DC 5257 is unambiguous; by its plain language, it provides compensation [] from impairments of the knee, other than those enumerated elsewhere in the relevant regulations, that cause the symptoms of recurrent subluxation or lateral instability.” Delisle v. McDonald, 789 F.3d 1372 (Fed.Cir. 2015) (noting that this interpretation is consistent with the language of DC 5257 and the remainder of the relevant regulations; and observing that 38 C.F.R. § 4.71a, DC 5284 creates a “catch-all” DC for “Foot Injuries, other” but DC 5257 is not a “catch-all” provision for rating knee disorders (in the absence of past surgery, limited motion of dysfunction from painful motion); and, so, the Federal Circuit was persuaded that DC 5257 was limited to establishing compensation for disabilities causing symptoms specifically enumerated in DC 5257). In this case the Veteran has never had ankylosis of the right knee, malunion or nonunion of the right tibia or fibula, or genu recurvatum. Thus, the DCs for rating these disabilities are not applicable. See 38 C.F.R. § 4.71a, DCs 5256, 5262, and 5263. Under DC 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability, a 10 percent rating is assigned with evidence of slight recurrent subluxation or lateral instability of a knee; 20 percent rating is assigned with evidence of moderate recurrent subluxation or lateral instability; and 30 percent rating is assigned with evidence of severe recurrent subluxation or lateral instability. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under DC 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). 38 C.F.R. § 4.71a, DC 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. Under Diagnostic Code 5260, a noncompensable rating is assigned for flexion limited to 60 degrees. A rating of 10 percent requires limitation of flexion to 45 degrees. A rating of 20 percent requires limitation of flexion to 30 degrees, and a rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, extension limited to 5 degrees warrants a noncompensable rating. A rating of 10 percent requires limitation of extension to 10 degrees; 20 percent requires limitation of extension to 15 degrees; 30 percent requires limitation of extension to 20 degrees; 40 percent requires limitation of extension to 30 degrees; and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed.Reg. 59,990 (2004). Analysis 1. Entitlement to a combined rating in excess of 30 percent prior to June 7, 2011, for a right knee disability (formerly residuals of a meniscectomy of the right knee and posttraumatic arthritis of the right knee). Prior to the assignment of a 100 percent rating as of the Veteran total right knee replacement, a 10 percent rating was assigned for posttraumatic arthritis of the right knee based on painful motion but a noncompensable degree of limited motion. Given that normal motion is from 0 percent of extension to 140 degrees of flexion, the Veterans Law Judge that presided at the 2010 Board hearing questioned the accuracy of that finding. Subsequently, the January 2011 VA examination revealed that motion was from 0 degrees of extension to 60 degrees of flexion. However, under DCs 5260 and 5261, these findings still did not warrant a rating in excess of 10 percent for the posttraumatic right knee arthritis. Also prior to the assignment of a 100 percent rating as of the Veteran total right knee replacement, a 20 percent rating was assigned for right knee disability premised upon the Veteran’s in-service meniscectomy and evidence of ligamentous damage. While the in-service operative report noted that the anterior cruciate ligament (ACL) was absent and did not specifically state that it was surgically repaired, a November 2007 right knee magnetic resonance imaging (MRI) had yielded finding of status post (SP) ACL tear, which indicates that the right ACL tear was, in actuality, surgically repaired during service. The evidence does not show that the Veteran has ever had any locking of the right knee. Thus, a 20 percent rating was not warranted prior to the right knee replacement under DC 5258, for a dislocated cartilage with frequent locking. The 20 percent rating assigned prior to the right knee replacement was premised upon instability of the right knee, under DC 5257, and was a rating greater than 10 percent under DC 5259 for symptomatic meniscectomy residuals. The 20 percent rating encompassed moderate instability of the right knee, and the next higher rating requires that there be severe instability. According to MERRIAN WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. A review of the evidence shows that prior to his knee replacement the Veteran complained of instability and used a knee brace. VAOPT records document instability in January 2002 and again in August 2007. However, VA rating examinations in March 2002, October 2007, and January 2011 found no instability of the right knee. Given the lack of consistent findings with respect to instability, the Board is simply unable to conclude that there is sufficient evidence to find that prior to the right knee replacement the Veteran has such a degree of instability that it could be fairly classified as being of a severe degree. Accordingly, the Board finds that prior to the June 7, 2011, right knee replacement, the preponderance of the evidence established that the Veteran did not have a compensable degree of limited flexion or extension, although he had painful right knee motion, and did not have locking or severe instability of the right knee. Thus, an increased rating was not warrant, to include not warranting a combined disability rating in excess of 30 percent. 2. The propriety of the rating to be assigned for the post-operative residuals of a total right knee replacement from August 1, 2012. Here, following the Veteran’s total right knee replacement, he was assigned a 100 percent rating based on 1-month of convalescence under 38 C.F.R. § 4.30 and based on the 1-year prescribed period under Note following DC 5055, and thereafter a 50-percent rating was assigned based on limitation of extension. The 50-percent rating was subsequently reduced to 30 percent, which is the minimum rating following knee replacement under DC 5055. Initially the Board observes that during the appeal of the appropriate rating for the service-connected right knee disability, the AOJ found CUE in the 2012 rating decision. This determination of CUE was based on the misinterpretation of findings from a VA examination, as to limitation of motion of the right knee and, so, a 50 percent rating was assigned. However, there is no prohibition against revising a rating decision based on CUE pursuant to 38 C.F.R. § 3.105(a), even when an appeal of that rating decision is pending. This is so because such a rating decision is “final and binding” under 38 C.F.R. §§ 3.104 and 3.105, and because 38 C.F.R. § 3.2600(e) expressly allows for such revision. See generally Young v. Wilkie, No. 17-2179, slip op. (U.S. Vet. App. Mar. 11, 2019) (precedential panel decision) (citing Murphy v. Shinseki, 26 Vet. App. 510, 514 n.2 (2014) for the proposition that “a ‘final and binding’ decision, even in appellate status, is subject to sua sponte VA revision based on CUE). However, the Board does not have to reach a determination as to whether there was CUE in the 2012 rating decision’s assignment of a 50 percent schedular rating under DC 5261. That 50 percent rating was assigned effective from August 1, 2012, immediately after the termination of prescribed 1-year period for the 100 percent rating under DC 5055. See also 38 C.F.R. § 4.71a, DC 5005, Note (providing for a 100 percent rating “[f]or 1 year following implantation of [knee] prothesis”). This is because, for the reasons which follow, the Board finds that under DC 5055 and immediately following the 1-year expiration of 100 percent rating, the Veteran had severe painful motion, which, under DC 5055, warrants a 60 percent schedular rating. Under DC 5055, following implantation of a knee prosthesis, ratings may be assigned in excess of a minimum 30 percent based on intermediate degrees of residual weakness, pain or limitation of motion, rated analogously to DCs 5256 (ankylosis, and providing for no greater than a 60 percent rating), 5261 (limitation of extension, and providing for no greater than a 50 percent rating), or 5262 (impairment of the tibia or fibula with malunion or nonunion, and providing for no greater than a 40 percent rating). DC 5055 also provides for a 60 percent rating when there are chronic residuals consisting of severe painful motion or weakness of the affected extremity. Following the right knee replacement, the Veteran reported at the 2012 VA right knee examination that there had been only about a 10 percent improvement in his right knee condition. The examiner at the time indicated that the Veteran had moderate pain, including moderate pain on motion. However, it also found that he had weakened motor function, had an antalgic gait, and used a knee brace constantly. It is unclear what was meant when that examiner reported that the Veteran had residual signs and symptoms of his prior meniscectomy because following the implantation of his knee prosthesis he had no menisci in the right knee. The 2012 examination found flexion was limited to 80 degrees, and the 2017 VA examination found that it was limited to 100 degrees. The 2017 examination reported that he had full strength in flexion and only intermediate degrees of residual weakness, pain or limitation of motion. However, there were conflicting findings with respect to the Veteran’s having pain on mere weight-bearing, with it being reported that he did have pain on weight-bearing and, also, that there was no pain on weight-bearing. Neither the 2012 VA examiner nor the 2017 VA examiner commented upon the Veteran’s extensive and prolonged use of narcotics to control his pain. The Board is aware that the Veteran now has significant pain from multiple nonservice-connected disabilities, including cervical as well as lumbar radiculopathies. On the other hand, the evidence shows that he has used narcotic medication long before the development of these nonservice-connected disabilities. Indeed, the April 2016 VAOPT record noted that he had used large amounts of narcotics to control his pain, and a January 2016 VAOPT record observed that he had used Oxycodone for 30 years. While his use of such medication clearly predates his total right knee replacement, his subjective characterization of having had little improvement since the knee replacement and a continued need for narcotic medication to control his pain, even with the advent of pain from nonservice-connected disabilities, gives rise to a reasonable doubt as to his having severely painful motion of such extent as to warrant a 60 percent disability rating under DC 5005, since the expiration of the 1-year prescribed period for the 100-percent rating based on the Note following DC 5055. No rating greater than 60 percent is provided under the rating schedule under the circumstances of this case unless, under DC 5161, there is amputation at the upper third of the thigh, one-third of the distance from the perineum to the knee join measured from the perineum, for which an 80 percent rating may be assigned. Here, there is no amputation and, also, there is no degree of functional impairment which equates to such amputation, as this was specifically found to be the case by the 2017 VA examiner. Accordingly, the Board finds that with the favorable resolution of doubt, that a schedular rating of 60 percent, but not greater, is warranted for the Veteran’s post-operative residuals of a total right knee replacement from August 1, 2012. (Continued on next page) GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.