Citation Nr: 20003443 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 14-12 039 DATE: January 15, 2020 ORDER Entitlement to a disability rating of 60 percent for a left knee disability, status post left knee replacement, for the period on appeal prior to April 30, 2012 is granted. Entitlement to a disability rating of 60 percent for a left knee disability, status post left knee replacement, for the period beginning on and after June 1, 2013, is granted. FINDING OF FACT For the periods on appeal prior to April 30, 2012, and from June 1, 2013 ot the present, the Veteran’s left knee disability is manifested by symptoms of painful motion, muscle atrophy, weakness, instability, swelling, and interference with standing and walking CONCLUSIONS OF LAW 1. After resolving all doubt in the Veteran’s favor, the criteria for a rating of 60 percent, but no greater, for a left knee disability, status post left knee replacement, for the period prior to April 30, 2012, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code 5055 (2018). 2. After resolving all doubt in the Veteran’s favor, the criteria for a rating of 60 percent, but no greater, for a left knee disability, status post left knee replacement, for the period beginning on and after June 1, 2013, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code 5055 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1978 to March 1995. 1. Entitlement to a disability rating in excess of 30 percent for a left knee disability, status post left knee replacement The Veteran was initially granted service connection for a left knee condition in a January 1996 Rating Decision and was award a noncompensable disability rating effective May 1, 1995. Thereafter, he filed a claim for an increased disability rating on April 21, 2010. In a January 2011 Rating Decision, the Veteran was awarded a 10 percent disability rating effective April 15, 2009, a 100 percent disability rating due to a period of convalescence effective February 4, 2010 and a 30 percent disability rating effective May 1, 2011. The record does not show that the Veteran filed a notice of disagreement with the January 2011 Rating Decision. Accordingly, the January 2011 Rating Decision is final. In January 2012, the Veteran submitted a statement asking for an increased rating for his left knee disability. In an August 2012 rating decision, the Agency of Original Jurisdiction (AOJ) issued a decision denying a rating in excess of 30 percent. The Veteran subsequently perfected an appeal of this decision. In the intervening time, the Veteran has been awarded a 100 percent disability rating from April 30, 2012 to May 31, 2013 and a 30 percent disability rating from June 1, 2013. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on 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 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected right and left knee disabilities. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying scheduler criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the Diagnostic Codes (DCs) predicated on limitation of motion. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, including knee joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The Veteran has undergone two left knee replacement surgeries. His first left total knee arthroplasty was performed on February 4, 2010. His second left total knee arthroplasty was performed on April 30, 2012. For the year following each knee replacement, the Veteran received a 100 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055. The Veteran has been in receipt of a 30 percent disability rating from April 1, 2011 to April 29, 2012, the period between the first and second surgery, and since June 1, 2013, the period following the second surgery. For the period prior to the Veteran’s first left total knee arthroplasty, the Veteran received a 10 percent rating pursuant to 38 C.F.R. § 4.71a, DC 5003-5010.   Pertinent Rating Criteria The General Rating Formula for Diseases and Injuries of the knee are governed under 38 C.F.R. § 4.71a. Under Diagnostic Code 5010, arthritis due to trauma, substantiated by x-ray findings shall be rated based on limitation of motion of the affected part, as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2018). Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated based on limitation of motion under appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If there is limitation of motion but it is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion-to be combined, not added. If there is no limitation of motion, a 10 percent rating applies if there is X-ray evidence that two or more major joints or two or more minor joint groups are involved. A 20 percent rating applies if there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 U.S.C. § 4.71 a, Diagnostic Code 5003. For purposes of rating disability from arthritis, the major joints are the shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45. Diagnostic Code 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability of a knee; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. The Board observes that 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. The VA General Counsel has held that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998). In VAOPGCPREC 9-98 (1998), the VA General Counsel explained that when a Veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. 64 Fed. Reg. 52,376 (1999). A separate rating for arthritis (in addition to Diagnostic Code 5257) could instead be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Limitation of motion of the knee is rated under Diagnostic Code 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a noncompensable disability rating is warranted for flexion limited to 60 degrees. A 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. Under Diagnostic Code 5261, a noncompensable disability rating is warranted for extension limited to 5 degrees. A 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Rating Period prior to April 30, 2012 Under DC 5055, a temporary 100 percent disability evaluation is awarded for one year following the implantation of a knee prosthesis. Thereafter, a 30 percent rating is warranted as a minimum rating post-knee replacement. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to DCs 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). As noted above, the Veteran filed his claim for an increased rating in January 2020. A February 2012 private treatment record noted that the Veteran continued to have pain since his February 2010 surgery. The Veteran had pain in his knee when he slept and would go three to four nights without sleep due to pain. He also complained that his knee would give out on him. During private examination in February 2012, the Veteran’s left knee range of motion was from 0 to 120. He had +1 anterior laxity, 2+ medial and lateral laxity. He had flexion from 15 to 30 degrees. It was tender over the lateral surface of the patella. X-rays showed total knee arthroplasty in satisfactory alignment with some bony osteophytes over the lateral side of the patella. In a March 2012 private treatment record, a physician wrote that the Veteran continued laxity in his left total knee arthroplasty. He was lax at 20 to 30 degrees of flexion. The physician recommended a total revision of the knee. In a March 2012 Statement in Support of Claim from the Veteran, he wrote that he had continued pain in his left knee which resulted in hinderance of his daily activities. He also experienced daily swelling. Based on the foregoing, the Board finds that the Veteran is entitled to a 60 percent disability rating under DC 5055 for the period on appeal prior to April 30, 2012. The Veteran’s lay statements regarding chronic pain in his left knee are supported by the February 2012 private medical records, which noted pain so severe he was unable to sleep for three to four days. Furthermore, it was found by both the February 2012 and March 2012 physicians that the Veteran experienced laxity in his left knee and his range of motion was negatively impacted. The Board finds that the Veteran is therefore entitled to the maximum 60 percent rating und DC 5055 for chronic residuals consisting of severe painful motion or weakness in the left knee for the period on appeal prior to April 30, 2012. Period beginning June 1, 2013 The Veteran had his second left total knee arthroplasty on April 30, 2012. Thereafter he was awarded a temporary total disability rating under DC 5055 until May 31, 2013. In a September 2013 bone scan report, it was found that there was mild increased activity beneath the tibial tray and the distal aspect of the stem of the tibial component most likely representing reactive change. There was no definite evidence of loosening. In a January 2014 Statement in Support of Claim the Veteran wrote that he had considerably less knee pain following his second knee surgery. However, the Veteran was still having unresolved issues with his implant. He reported having shin splint type pain at the end of the implant and restless leg syndrome most nights. The Veteran also reported continued pain, swelling and his knee giving out. In November 2014 the Veteran was afforded a VA Knee and Lower Leg Examination. The Veteran was diagnosed with left knee status post total knee arthroplasty with scar. During the examination, the Veteran described having left knee pain daily and shin splints three to five times per week. No flare-ups were reported. However, he had difficulty walking long distances and standing for long periods. Range of motion showed the left knee to be abnormal or outside of normal range. Flexion was measured from 0 to 90 degrees and extension was measured from 140 to 0 degrees. Pain was noted on flexion range of motion testing but did not result in/cause functional loss. There was no evidence of pain on weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Range of motion in the right knee was found to be all normal, with no pain on weight bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions for both knees. Neither knee showed additional functional loss or range of motion after three repetitions. The Veteran was being examined immediately after repetitive use over time. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time in either knee. The examination was not being performed during a flare-up. It was found that additional factors contributing to disability in the left knee included less movement than normal due to ankylosis, adhesions, disturbance of locomotion and interference with standing. Muscle strength testing was normal bilaterally. Although the examiner noted that ankylosis was a factor to contributing to functional loss in the left knee, he also found that there was no ankylosis in either knee. Joint stability testing was normal bilaterally. Additional conditions were noted as shin splints on the left side. No meniscal conditions were found. The examiner noted that the Veteran underwent total left knee joint replacement surgeries in 2009 and 2011. Residuals from the surgeries included intermediate degrees of residual weakness, pain or limitation of motion. The Veteran also had a left knee scar which was 15 centimeters in length by 0 centimeters in width. The Veteran did not use any assistive devices. In January 2015 the Veteran submitted a Statement in Support of Claim in which he expressed that he felt the November 2014 VA examination was inadequate. The Veteran wrote that it should have been included in his examination report that he had gained weight due to an inability to exercise. He was in pain on the day of the examination. He experienced calf cramps in his left calf during the night, which made sleeping difficult. The Veteran contended that although the examiner found no edema during the examination, a recording of the examination by the Veteran showed that they discussed swelling and the examiner agreed that there was swelling present. He noted that swelling occurred daily. He contended that the examiner did not examine his leg beyond measuring range of motion. He informed the examiner that his knee hyperextended, but it was not mentioned in the report. The Veteran also reported diminished strength. A January 2015 Statement in Support of Claim was also submitted by the Veteran’s wife. She wrote that on a day to day basis she witnessed pain and swelling in the Veteran’s left knee. She also supported the Veteran’s contentions that his knee made it difficult for him to sleep. He applied ice and heating pads, but they did not offer much relief. The Veteran’s wife further wrote that his left knee condition has made walking and exercising difficult causing weight gain. Walking caused pain in his left shin and weakness and swelling in his knee. She also witnessed the Veteran’s knee giving way or hyperextending while doing daily activities, which caused him great pain. A March 2015 VA treatment record noted that the Veteran’s left knee was painful, and it hurt to walk. The knee was also swollen. An April 2015 VA treatment record found the left knee to be tender, stable to varus and valgus stress to 90 degrees of motion. It was stable in sagittal plane with anterior and posterior drawer. A straight leg raise test was negative. However, the Veteran complained about shin pain and was instructed to limit walking for aerobic exercise. During a March 2016 VA treatment visit, it was noted that the Veteran often woke at night with deep seated pain. The pain improved throughout the day. In August 2016 the Veteran was afforded a Board video conference hearing. During the hearing the Veteran reiterated his complaints that the November 2014 examiner did not note swelling, hyperextension or his use of a knee brace. The Veteran also testified that he continued to experience severe pain and hyperextension of his left knee, which can cause him to stumble or fall. He stated that his knee hyperextended three to four times per week. He also experienced daily swelling. In May 2017 the Veteran was afforded a VA knee examination. During the in-person examination the Veteran was diagnosed as status post left knee replacement with surgical scar. The Veteran current symptoms included worsening knee pain when climbing stairs. He also too Naproxen and Percocet. The Veteran reported flare-ups which were described as daily constant sharp and throbbing pain. They occurred every day, were mild to moderate in severity and lasted 24 hours. Functional loss included inability to knee or squat and difficulty climbing stairs. Range of motion testing showed the Veteran’s right knee as normal without pain. The Veteran’s left knee range of motion was abnormal or outside of normal range. Flexion was measured from 0 to 110 degrees and extension was from 110 to 0 degrees. Pain was noted on flexion and extension examination and caused functional loss. The pain was described as mild tenderness at the patellar tendon and lateral joint line. There was evidence of pain with weight bearing. No crepitus was present. The Veteran was able to perform repetitive-use testing bilaterally without additional loss of function or range of motion after three repetitions. He was not being examined immediately after repetitive use over time. The examination was not being conducted during a flare-up and the examiner was not able to describe functional loss during a flare-up, because it would be based upon mere speculation. The examiner found there was no swelling, deformity, atrophy, instability of station, disturbance of locomotion, interference with sitting or standing. Muscle strength testing was normal in the right knee and resulted in active movement against some resistance in the left knee. The reduction in strength in the left knee was entirely due to the Veteran’s left knee condition. The examiner found that the Veteran had muscle atrophy of the left lower extremity which was 10 centimeters above the superior pole of the patella. No ankylosis was present. It was found that the Veteran did not experience recurrent patellar dislocation, shin splints, fractures, chronic exertional compartment syndrome or any other tibial or fibula impairment. The Veteran had a history of left side meniscal tear and his symptoms included frequent episodes of joint pain. He also had a left knee scar which measured 18.5 centimeters in length and 0.3 centimeters in width. He also regularly used a brace. X-rays showed no evidence of post-surgical complications. In February 2017 the Veteran was treated for a right knee injury, which occurred when he hyperextended his left knee, tripped and twisted the right knee. A June 2017 treatment record noted that the Veteran continued to experience shin splints. He also reported posterior pain in his knee while sleeping. The Veteran reported that his knee buckled, causing him to fall and tweak his right knee. Range of motion testing showed 0 to 120 degrees on the left and 0 to 130 degrees on the right. Atrophy was noted in the left quadricep. The Veteran was most recently afforded a VA Knee Examination in September 2018. During the examination, the Veteran reported that he continued to have daily swelling of the left knee and pain with flexing, ambulation and standing. He felt the knee was unstable and hyperextended. He also reported a tear of the right knee meniscus in February 2018 when he nearly fell. It was noted that the Veteran did not have flare-ups of the knee and/or lower leg. The functional impact was described as an inability to run or walk more than a half mile on a padded treadmill due to left knee pain. He did not use stairs due to pain. The Veteran was unable to stand longer than 15 minutes or sit longer than 10 minutes due to left knee pain. He was unable to squat, and he had difficulty standing from the toilet. Range of motion testing showed that the left knee was abnormal or outside of normal range. Flexion was measured from 0 to 90 degrees and extension was from 90 to 0 degrees. Range of motion contributed to functional loss because the Veteran was unable to squat. Pain was noted flexion and extension which caused functional loss. No pain was noted with weight bearing. There was objective evidence of localized tenderness at the lateral joint line. No crepitus was present. The Veteran was able to perform repetitive use testing with at least three repetitions and it did not result in additional functional loss or range of motion. He was not being examined immediately after repetitive use over time. It was noted that there no additional factors contributing to his disability. Muscle strength testing was normal bilaterally. No ankylosis was present. The examiner noted that the Veteran had a history of slight left lateral instability. He also noted daily left knee effusion. Stability testing showed normal anterior, posterior and medial stability. However, the Veteran had 1+ (0-5 millimeters) of lateral instability. The examiner found that the Veteran did not now have, nor had he ever had, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. It was noted that the Veteran did not now, nor had he ever had, a meniscus (semilunar cartilage) condition. The examiner found that the residuals of the Veteran’s left knee surgeries included intermediate degrees of residual weakness, pain or limitation of motion. The Veteran also had moderate edema and warmth of the left knee. His surgical scar also measured 20 centimeters by 0.5 centimeters. The Veteran also made regular use of a brace and occasional use of a cane. It was also found that there was pain on passive range of motion testing and pain when the joint was use in non-weight bearing. The Veteran stated that he had constant pain and the examiner observed him sitting with his left keg outstretched for the entire examination. As noted above, the opposing joint was not undamaged. The examiner wrote that the right knee range of motion could be tested, but it did not reflect his baseline uninjured range of motion. Range of motion in the right knee measured flexion from 5 to 130 degrees and 130 to 5 degrees of extension. A November 2018 VA treatment record noted that the Veteran had instability in his left knee. He also had pain along the medial joint line. The Veteran sought treatment due to his knee buckling with associated clicking, popping, intermittent swelling and grinding. After a thorough review of the Veteran’s medical records and with consideration of the totality of symptoms alleged and observed, the Board concludes that the Veteran’s overall disability picture more closely approximates an increased disability rating, of 60 percent, under Diagnostic Code 5055 throughout the period beginning June 1, 2013. In reaching this conclusion, the Board has taken into consideration the numerous instances within the evidentiary record of left knee instability, weakness, laxity, effusion and pain. Consideration of the totality of the Veteran’s symptoms during this period indicates that the Veteran’s overall disability picture more closely approximates a 60 percent disability rating under Diagnostic Code 5055. By assigning the increased 60 percent disability rating under Diagnostic Code 5055, the Board declines to consider whether the Veteran is entitled to an additional disability evaluation under other applicable codes. Rather, in assigning the Veteran a 60 percent rating under Diagnostic Code 5055, the Veteran is in receipt of the maximum schedular rating available. VA regulations, specifically the “amputation rule,” provide that the combined rating for disabilities of an extremity cannot exceed the rating for amputation at the elective level. See 38 C.F.R. § 4.68. In relation to amputations of the lower extremity, a 60 percent disability rating is assigned if there was an amputation of the thigh, above the knee, at the middle or lower third. See 38 C.F.R. § 4.71a, DC 5164. Thus, under the “amputation rule,” a 60 percent disability rating is the maximum assignable disability rating for the Veteran’s left knee disability. Therefore, affording all benefit of doubt to the Veteran, the Board finds symptoms of severe painful motion and weakness/instability warrant the assignment of an increased, maximum 60 percent disability rating under Diagnostic Code 5055 throughout the period on appeal. To this extent, the Veteran’s appeal is granted. DAVID L. WIGHT 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.