Citation Nr: 20003765 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 18-28 354 DATE: January 16, 2020 ORDER Entitlement to an evaluation in excess of 60 percent for right total knee arthroplasty (TKA) is denied. Entitlement to an evaluation in excess of 10 percent for left knee degenerative joint disease (DJD) based on limitation of flexion is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Service-connected right TKA is marked by residual weakness, pain, or limitation of motion, with difficulty standing or walking for prolonged periods of time. 2. Service-connected left knee DJD is marked by flexion ranging from 0 to 90 degrees, without additional loss following repetitive use testing. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 60 percent for right TKA are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2019). 2. The criteria for an evaluation in excess of 10 percent for left knee DJD based on limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of United States Army Reserves, with periods of active duty from December 1983 to March 1984, from February 1991 to January 1992, and from January 1995 to June 1996. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the claims in July 2019 for further development. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Right TKA The Veteran has been service-connected for right knee meniscal tear and arthritis since October 12, 1999. In February 2014, he underwent a total knee arthroplasty (TKA) and was subsequently assigned a rating under Code 5055 for the total knee placement effective from the date of surgery, February 28, 2014. Diagnostic code 5055 prescribes a 100 percent evaluation for one year following implantation of prosthesis and a minimum evaluation of 30 percent thereafter. A maximum 60 percent evaluation is warranted when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. For evaluations below 60 percent, intermediate degrees of residual weakness, pain or limitation of motion are evaluated by analogy to diagnostic codes 5256 (ankylosis), 5261 (limitation of extension), or 5262 (tibia and fibula impairment) if they provide for a rating greater than the 30 percent minimum under Diagnostic Code 5055. 38 C.F.R. § 4.71a, Diagnostic Code 5055. A 30 percent rating was assigned effective May 1, 2015, and the current 60 percent evaluation was assigned effective January 14, 2016. During an April 2016 VA examination, the Veteran reported flare-ups, which he described as increased pain and swelling. He described his functional loss as difficulty bending, climbing stairs, rising from a seated position, standing, and walking for long periods. His initial range of motion was abnormal, with flexion measuring 0 to 80 degrees and extension measuring 140 to 0 degrees. His abnormal range of motion itself contributed to functional loss. Pain was noted on examination during flexion and extension. There was objective evidence of pain with weight bearing, but no objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional functional loss or range of motion following repetitive use testing. The Veteran was examined immediately after repetitive use over time. Pain, fatigue, weakness, and lack of endurance significantly limited his functional ability with repeated use over time, but range of motion was unchanged. The examination was not conducted during a flare-up and was neither medically consistent or inconsistent with the Veteran’s descriptions of functional loss during flare-ups. The examiner noted that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flare-ups. The examiner was not able to describe this in terms of range of motion other than to say that the Veteran had more difficulty bending, climbing stairs, rising from a seated position, standing, and walking for long periods. Swelling was an additional contributing factor of disability. There was a reduction in muscle strength entirely due to the claimed condition, with flexion and extension both showing active movement against some resistance. There was no muscle atrophy or ankylosis. There was no history of recurrent subluxation or recurrent effusion, but there was a history of slight lateral instability. Joint stability testing revealed joint instability, with lateral instability measuring 1+ (0-5 millimeters). The Veteran had not ever had recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or other tibial and/or fibular impairment. The Veteran had a meniscal tear with frequent episodes of joint pain. The chronic residuals of his total knee joint replacement from the 1990’s consisted of severe painful motion or weakness. The residual symptoms due to his 1990’s meniscectomy, arthroscopic or other knee surgery were pain and decreased range of motion. The Veteran regularly used a cane. A September 2019 VA examiner noted that the Veteran had a history of degenerative arthritis of the right knee with replacement. He did not report flare-ups, functional loss, or functional impairment. The initial range of motion for his right knee was abnormal, with flexion measuring from 0 to 90 degrees and extension measuring from 90 to 0 degrees. This abnormal range of motion itself contributed to functional loss. Pain was noted on examination during flexion which caused functional loss, and there was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue that was described as diffusely tender. There was no objective evidence of crepitus. Repetitive use testing did not result in additional functional loss or range of motion after three repetitions. The Veteran was examined immediately after repetitive use over time without pain, weakness, fatigability, or incoordination significantly limiting functional ability. Muscle strength testing was normal and there was no muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing showed no joint instability. The Veteran had never had recurrent patella dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner noted that the Veteran had a right knee meniscus condition with meniscectomy in 1996 and 1999, but there were no current symptoms. Regarding his surgical procedures, the examiner noted the total knee joint replacement and documented intermediate degrees of residual weakness, pain, or limitation of motion. He did not use any assistive devices, but he had problems with prolonged walking and standing. There was evidence of pain on passive range of motion testing and when the joint was used in non-weight bearing. The Veteran has not undergone further surgery, and is hence not entitled to assignment of a schedular 100 percent rating under Code 5055. He is in receipt of the maximum schedular 60 percent rating, and offers no argument or evidence indicating that the schedular criteria are not adequate, do not encompass his symptoms and complaints, or fail to reflect any exceptional circumstance. Indeed, the criteria under Code 5055 directly address his contentions of severe pain and weakness. Only if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and it is found inadequate, the Board must determine whether the exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms” (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, there being no higher available schedular evaluation more than a year following surgery, and no exceptional disability picture requiring consideration of 38 C.F.R. § 3.321, a rating in excess of 60 percent for current residuals of TKA is not warranted. Left knee DJD The Veteran is currently rated 10 percent disabled for left knee DJD, effective March 18, 2014. His disability is rated under Diagnostic Code 5003-5260. Hyphenated Diagnostic Codes denote that a condition is diagnosed and service-connected primarily under the first Code, but the criteria of the second are used to assign evaluations based on residuals or predominant manifestations. 38 C.F.R. § 4.27. In other words, here the arthritis is rated based upon limitation of motion in flexion. There are numerous Diagnostic Codes which are potentially applicable to evaluation of a knee disability. Code 5256 is utilized for evaluation of ankylosis; as there remains some motion of the left knee, this Code is not applicable here. Code 5257 evaluates disabilities of the knee based on the degree of subluxation and instability of the joint. This Code is inapplicable because there is no evidence of subluxation or instability of the knee. Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, or menisci. These Codes are inapplicable because examinations have been negative for meniscus abnormality. Finally, while evaluations under Code 5262 may be based in part upon knee disability, the underlying impairment must be related to damage to the bones of the lower leg. No tibia or fibula impairment is shown here. 38 C.F.R. §§ 4.71a. For limitation of motion, there are three potentially applicable Diagnostic Codes. Simultaneous rating of impairments in distinct planes of motion is permissible. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. However, Code 5003, for arthritis, does not allow for a rating in excess of the currently assigned 10 percent for a single disability, and so will not be further considered. 38 C.F.R. §§ 4.71a, Code 5003. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Code 5260 assigns evaluations based on limitation of flexion. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension is rated under Code 5261. A noncompensable evaluation is assigned for limitation to 5 degrees. A 10 percent evaluation is for assignment when extension is limited to 10 degrees. Fifteen degrees limitation merits a 20 percent evaluation, and 20 degrees merits a 30 percent evaluation. Limitation to 30 degrees is evaluated as 40 percent disabling, and limitation to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Code 5261. During the April 2016 VA examination, the Veteran reported flare-ups, which he described as increased pain and swelling. He described his functional loss as difficulty bending, climbing stairs, rising from a seated position, standing, and walking for long periods of time. His initial range of motion was abnormal, with flexion measuring from 0 to 100 degrees and extension measuring from 140 to 0 degrees. Pain was noted on examination during flexion and extension. There was no additional functional loss or range of motion after repetitive use testing. There was no loss of range of motion when the Veteran was examined immediately after repetitive use over time. However, pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time. There was evidence of pain on weight bearing, but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. The Veteran was not examined during a flare-up, and the examination was neither medically consistent or inconsistent with his statements describing functional loss during flare-ups. Pain, fatigue, weakness, and lack of endurance significantly limited his functional ability with flare-ups. The examiner was not able to describe this in terms of range of motion, but noted that the Veteran had more difficulty bending, climbing stairs, rising from a seated position, standing, and walking for long periods. Swelling was noted as an additional factor of disability. Muscle strength testing showed a reduction in muscle strength, with active movement against some resistance for both flexion and extension. There was no atrophy, ankylosis, history of recurrent subluxation, history of lateral instability, or history of recurrent effusion. Joint stability testing was normal. The Veteran had not had recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. He had never had a meniscus condition or surgery on his left knee. He regularly used a cane. During a September 2019 VA examination, the Veteran did not report flare-ups or functional or impairment. His initial range of motion was abnormal, with flexion measuring 0 to 90 degrees and extension measuring 90 to 0 degrees. This abnormal range of motion itself contributed to functional loss, due to limited motion with pain. Pain was noted on examination during flexion that caused functional loss. There was objective evidence of pain with weight bearing and localized tenderness or pain on palpation, which the examiner described as diffusely tender. There was no objective evidence of crepitus. Repetitive use testing was accomplished without any additional functional loss or range of motion. The Veteran was 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. Muscle strength testing was normal and there was no atrophy, ankylosis, history of recurrent subluxation, history of lateral instability, or history of recurrent effusion. Joint stability testing was normal. There was no history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The Veteran had never had a left-sided meniscal condition or surgery. He did not use any assistive devices. Arthritis was noted on imaging studies. The examiner noted problems with prolonged walking and standing. There was evidence of pain on passive range of motion testing and when the joint was used in non-weight bearing. Flexion While the Board previously found the April 2016 VA examination inadequate, the findings from that examination are still evidence of a baseline. During that examination, the Veteran’s flexion ranged from 0 to 100 degrees. This was not reduced by repetitive use testing, and there was no additional loss of range of motion when the Veteran was examined immediately after repetitive use over time. He did not describe experiencing loss of range of motion during a flare-up, but only noted increased pain and swelling. The Board remanded for an adequate examination and one was obtained in September 2019. During that examination, range of motion measured 0 to 90 degrees. This did not decrease after repetitive use testing or following repeated use over time. The Veteran did not experience flare-ups. Findings from both examinations are consistent in that they do not show that flexion was limited to 30 degrees at any time during the appeal period. Absent such evidence, a 30 percent evaluation is not warranted. Extension During his April 2016 examination, the Veteran’s extension was full and complete, though pain was noted. There was no additional functional loss or range of motion after repetitive use testing or when the Veteran was examined immediately after repetitive use over time. During his September 2019 examination, extension was also full, to 0 degrees. Repetitive use testing was accomplished without any additional functional loss or range of motion. The Veteran did not report flare-ups. The evidence does not show that the Veteran’s extension is limited to 5 degrees, and an evaluation under Code 5261 is not appropriate. Moreover, as a compensable rating is assigned under Code 5260, and the provisions of 38 C.F.R. § 4.59 mandating a minimal compensable evaluation for a painful joint do not specify a plane of motion, an additional, separate 10 percent rating under Code 5261/§ 4.59 would constitute prohibited pyramiding. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. REASONS FOR REMAND Where there is evidence of a current disability, an in-service incident or injury, and the possibility of a nexus between them, remand is required to obtain an examination and medical opinion. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has a diagnosis of lumbar strain. He lifted a refrigerator during service and his subsequent service treatment records discussed his lumbar spine. Under assessment/plan, the treatment provider stated, “neuropraxia secondary to acute radiculopathy.” He also noted muscle strain injury versus radiculopathy. This suggests an in-service injury. A nexus opinion must now be obtained as to whether the Veteran’s current diagnosis is related to the in-service notations of injury. The claim for a finding of TDIU is inextricably intertwined with the claim for service connection for a lumbar spine disability. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Adjudication of the claim for TDIU is deferred until the service connection claim is resolved. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records. 2. Schedule the Veteran for a VA lumbar spine examination; the examiner must review the claims file in conjunction therewith. The examiner must identify all current diagnoses of the lumbar spine. For each the examiner must opine as to whether such is at least as likely as not caused or aggravated by service, to include the in-service notations of neuropraxia secondary to acute radiculopathy, and muscle strain injury versus radiculopathy. Full and complete rationales are required for all opinions expressed. 3. Readjudicate the remanded issues. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDermott 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.