Citation Nr: 19114934 Decision Date: 02/28/19 Archive Date: 02/28/19 DOCKET NO. 12-03 466 DATE: February 28, 2019 ORDER A 60 percent rating, but no higher, for a left total knee replacement (TKR) is granted from November 24,2009 until September 13, 2011. A 60 percent rating, but no higher, for a left TKR is granted from November 1, 2012. FINDING OF FACT 1. For the period beginning November 24, 2010 until September 13, 2011, chronic residuals of the left TKR resulted in severe painful motion and weakness. 2. For the period beginning November 1, 2012, chronic residuals of the left TKR resulted in severe painful motion and weakness. 3. The residuals from the Veteran’s left TKR on September 13, 2011, did not necessitate convalescence after November 1, 2012. CONCLUSION OF LAW 1. The criteria for a 60 rating, but no higher, for a left TKR for the period beginning November 24, 2009, until September 13, 2011, are met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400(o), 4.1, 4.3, 4.6, 4.7, 4.27, 4.30, 4.40. 4.45, 4.59, 4.71a, DC 5055 (2017). 2. The criteria for a 60 rating, but no higher, for a left TKR for the period beginning November 1, 2012, are met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1, 4.3, 4.6, 4.7, 4.27, 4.30, 4.40. 4.45, 4.59, 4.71a, DC 5055 (2017). 3. The criteria for an extension of a 100 percent rating for a left TKR after November 1, 2012, are not met. 38 U.S.C. §§ 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.30, 4.71a, DC 5055 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to April 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of a Regional Office (RO) of Department of Veterans Affairs (VA). This rating decision continued a 30 percent disability rating for residuals of a left knee replacement. A December 2011 RO decision granted a temporary total disability rating effective September 13, 2011 and assigned a 30 percent rating from November 1, 2012, based upon a total left knee arthroscopic revision. The Board will consider the periods before and after the temporary total 100 percent rating. This matter was before the Board in February 2017 and January 2018 when it was remanded in each instance for further examinations. The Veteran’s representative requested that a claim for service connection for a right knee disability be inferred from the May 2017 VA examination. The Veteran must submit the appropriate standardized form for this claim and it will not be addressed here. 1. Entitlement to an increased rating for a total knee replacement On November 24, 2010, the Veteran submitted a Statement in Support of Claim, VA Form 21-4138, requesting an increased rating for his service-connected left knee replacement. The Veteran initially hurt his knee playing basketball during service and underwent meniscus surgery in 1968. He later underwent knee replacement surgery in 2004. In a January 2011 Statement in Support of Claim, the Veteran reported knee popping in his left knee which hurt and was stiff and swollen. The Veteran states he did not fail to appear for a scheduled VA examination at Southwest X-Ray in January 2011, but rather did not receive notice. The Veteran was scheduled for a Richmond VA Medical Center (VAMC) appointment the same date and denies missing an appointment that day. The Veteran’s claim was denied and he filed a Notice of Disagreement in June 2011. The Veteran underwent an arthroscopic revision of the left knee replacement on September 13, 2011. By rating decision of December 2011, a 100 percent rating from September 13, 2011, until November 1, 2012, and a 30 percent rating, was made effective from November 1, 2012. Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2015). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). The Veteran’s entire history is to be considered when assigning disability rating. 38 C.F.R. § 4.1 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veterans post total knee replacement is rated under Diagnostic Code (DC) 5055. Under DC 5055, the knee will be rated 100 percent for one year following implantation of prosthesis. After that, a 30 percent rating is assigned as the minimum rating. A 60 percent rating is warranted with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion can be rated by analogy using Diagnostic Codes 5260, 5261, or 5262, but not to be less than 30 percent. The Board will consider the Veteran’s left knee disability picture for two periods, that is for the period prior to September 13, 2011, excluding periods of a temporary total evaluation, and the period beginning on November 1, 2012, after the temporary total evaluation. Period from November 24, 2009, to September 13, 2011 As noted above the Veteran underwent a left knee replacement surgery in 2004. The period under consideration is one year prior to the date of the claim, or November 24, 2009. In October 2010 the Veteran was examined at Richmond VAMC and there was an indication of exquisite left knee pain with palpation. X-Ray results revealed there was a new lucency beneath the anterior aspect of the femoral component and the Veteran was referred to the Orthopedic clinic. A November 2010 VAMC orthopedic report indicates that the Veteran reported that 6-months after his 2004 TKR, he developed pain and aching in the knee which has been intermittent over the last 5 and a half years. On examination there was no effusion; collateral ligaments were stable; and x-rays suggested femoral component loosening. The orthopedic surgeon suggested a left knee revision to correct the loosening. At an August 2011 pre-surgical exam his range of motion was -3 to 92 degrees, with minimal effusion. Surgical notes from the September 2011 knee revision surgery indicate that the knee had become more and more painful after the initial 2004 knee replacement surgery. Analysis of Increased Rating for Period prior to September 13, 2011 The Board finds that an increased rating of 60 percent, but no higher, is warranted from a year prior to the date of claim until the time of the Veteran’s surgery. The Board notes the lack of an examination from this time to adequately determine the precise level of pain, range of motion and other associated conditions of the Veteran’s left knee. The rating criteria for a 60 percent rating under DC 5055 requires that there be chronic residuals consisting of severe painful motion or weakness in the affected extremity. In finding that the Veteran is entitled to a higher rating the Board notes that the Veteran had exquisite pain at his October 2010 appointment. The Veteran’s pain began 6 months after his initial surgery and was intermittent. According to surgical notes, the knee had become more and more painful since that surgery, but the exact date pain became chronic in nature is not evident from the record. In assigning the highest available rating the Board gives significant weight to the necessity of the surgery due to the failed left knee replacement. Accordingly, the Board grants a 60 percent rating from November 24, 2009, to September 12, 2011, under 38 C.F.R. §3.400(o).   Period From November 1, 2012 Forward After the September 2011 revision of the left knee replacement, the Veteran was assigned a temporary total disability rating. He was seen in December 2011 for a followup on his surgery. He was noted to be doing well, with only mild pain and good range of motion, from 0 to 110 degrees. His main complaint was slight pain over the collateral ligament. At a December 2013 VA examination, the Veteran reported that he had daily constant pain ranging from 2 out of 10 to 6 out of 10. He indicated the knee felt like it was trying to come out of the socket and that he could not put pressure on it or stand for any length of time. Range of motion was found to be 110 degrees flexion and 0 degrees extension without any painful motion for either. After repetitive use flexion was 90 degrees and 0 degrees extension. Ankylosis was not noted on examination. There was no tenderness or pain to palpation, muscle strength and joint stability were both normal. There was no evidence of subluxation or dislocation. The functional impact was noted to be limitation to running, jumping, prolonged standing, and walking long distances. The Veteran did not use any assistive device and his condition was found not to be as well served by amputation at this time. In October 2014, the Veteran was seen for a radiology appointment due to left knee pain. The radiologist’s impression was that he had moderate left knee joint effusion and prepatellar soft tissue swelling. In November 2014 he was seen at an orthopedic outpatient consultation and reported more pain and felt his knee dislocating, with episodes of waking at night with tremendous pain and having to put his knee back into place. He also had a subjective feeling of instability in the knee. A January 2015 radiology review showed possible patellofemoral subluxation with no evidence of loosening. At a May 2017 Compensation & Pension examination he reported intermittent left knee pain lasting several hours to several days. He also reported locking of the knee requiring him to put it back in place and this was a nightly event. The left knee had normal range of motion of flexion of 0 to 140 degrees and extension of 140 to 0 degrees with no pain noted on examination. He was able to perform repetitive use testing without additional functional loss or loss of range of motion upon examination. Muscle strength was 5/5 in the left knee for extension and flexion. There was ankylosis noted of favorable angle in full extension or in slight flexion between 0 and 10 degrees. There was no subluxation, no recurrent effusion, and no joint instability to the left knee. The Veteran did not use any assistive device. There was no functional impact noted regarding the Veteran’s total left knee replacement on examination. At a May 2018 C&P examination the Veteran reported that he still experienced nighttime locking of the left knee and had to put it back into place. Pain was 8 out of 10 when this occurred and would resolve once he had put it back into place. He reported pain usually came at night or during physical activities. He also reported feeling the left knee give way during walking and experienced intermittent swelling, but reported no falls. On examination range of motion was flexion of 0 to 80 degrees and extension of 80 to 0 degrees. Pain was not noted with weight bearing, but was noted with range of motion testing for flexion, with no additional loss of function or range of motion with repetitive use testing. The examiner indicated it would be medically contraindicated to perform weight bearing and passive range of motion testing to the fullest extent possible as it could harm the patient. Testing was not conducted during a flare-up, but the Veteran reported swelling, disturbance of locomotion, and interference with standing during flare-ups. Muscle strength was 5 out of 5 for flexion and extension. There was no ankylosis, no history of subluxation, lateral instability, or recurrent effusion noted on examination. There was anterior instability of 0-5 millimeters, with all other left knee stability tests being normal. The Veteran did not use any assistive devices and functional impairment of the extremity was not such that no effective function remained which would be equally well served by an amputation with prosthesis. The examiner indicated the functional impact of the left knee replacement was difficulty with activities of daily living, specifically hygiene and ambulating without pain or impairment.   Analysis of Increased Rating- November 1, 2012 forward The Board finds that from the period from November 1, 2012, until the present a rating of 60 percent, but no higher, is warranted for the Veteran’s left knee replacement under DC 5055. In reaching this conclusion the Board considers all of the examiners to be competent and credible, but find the 2018 examination to be most probative and therefore places significant weight on its findings. The Board assigns little weight to the 2017 examination as it did not conduct all testing required by 38 C.F.R. §4.59. Additionally, the findings of a full range of motion for the left knee are inconsistent with the other examinations and the medical evidence available. The Board finds the Veteran’s report of his symptoms of nightly locking lasting from a few hours to days to be competent and credible and assigns his report of symptoms significant weight. Regarding the 2013 examination, the Board notes that this is the first exam after the end of the Veteran’s 100 percent rating and that he was already reporting significant levels of pain ranging from 2 out of 10 to 6 out of 10 with persistent frequency. The Board, as noted above, places significant weight on the findings of the 2018 examination. All testing required under 38 C.F.R. §4.59 was conducted. The Board notes the Veteran experienced pain of 8 out of 10 during episodes of locking. These symptoms appear to be consistent in nature from the Veteran’s orthopedic appointment in 2014. The Board finds that the Veteran’s symptoms of anterior instability, pain on movement, functional loss due to pain, and the functional impairment to daily activities of living all warrant a higher rating. All the symptoms and reports noted above form a picture of his disability consisting of chronic residuals with severe painful motion. As a 60 percent rating is the highest rating available under DC 5055 the Board will not discuss ratings under DC 5256, DC 5261, or DC 5262. The Board also considered whether an extension of the total disability rating is warranted for the period from November 1, 2012, but found the evidence did not show convalescence of the Veteran from November 1, 2012 forward. Finally, the Board considered the Veteran’s representative argument in the January 2017 appellate brief that he should be assigned a separate rating under DC 5258. Both Diagnostic Codes 5055 and 5258 overlap in rating based on pain and effusion as forms of limitation of motion; therefore, assigning separate ratings under both Diagnostic Codes 5055 and 5258 at the same time would violate the rule against pyramiding. 38 C.F.R. § 4.14. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Middleton, Associate Counsel