Citation Nr: 20003797 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 19-34 134 DATE: January 16, 2020 ORDER An initial rating in excess of 30 percent for total knee arthroplasty (TKA) of the left knee is denied. An initial compensable rating prior to April 23, 2019, for a scar of the left knee, status post TKA, is denied. A 10 percent rating as of April 23, 2019, for a tender scar of the left knee, status post TKA, is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Throughout the appeal the residuals of a TKA of the left knee have been manifested primarily by pain and range of motion from, at worse, 15 degrees extension to 115 degrees flexion, without severe painful motion or weakness in the left knee joint. 2. Prior to April 23, 2019, the Veteran’s left knee scar, status post TKA, measured 14 cm by 0.1 cm and was nontender, stable, with no underlying tissue damage. 3. On April 23, 2019, the Veteran’s left knee scar, status post TKA was shown to be tender to palpation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for TKA of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5055. 2. The criteria for an initial compensable rating prior to April 23, 2019, for a scar of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802. 3. The criteria for a disability rating of 10 percent, but no more, as of April 23, 2019, for a tender scar of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1951 to September 1952. The case was previously before the Board in January 2019. At that time, the two issues currently before the Board were remanded for the issuance of a statement of the case by the Regional Office (RO) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). At that time, additional issues, including increased ratings for right knee disability and right knee scar as well as entitlement to a total rating by reason of individual unemployability (TDIU) were also remanded. Id. A review of the record shows that the appeals concerning the Veteran’s right knee and TDIU are still undergoing development by the RO; therefore, those issues are not presently before the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Entitlement to an initial rating in excess of 30 percent for TKA of the left knee Service connection for a TKA of the left knee was established by the RO in a November 2017 rating decision. The current 30 percent rating was established effective from January 1, 2018. On VA examination in October 2017, it was reported that the Veteran had undergone a TKA of the left knee in November 2016. He stated that his left knee was less painful than it had been preoperatively. He used a cane for gait stability and a scooter for activities outside the home. He reported having no flare-ups or functional loss of the left knee. Range of motion of the left knee was from 15 degrees extension to 120 degrees flexion. While there was pain on motion, this did not result in functional loss. There was objective evidence of localized tenderness and pain with weight bearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing without functional loss or loss of additional range of motion. The Veteran was not examined immediately after repetitive use over time. Muscle strength testing was normal 5/5, without evidence of muscle atrophy. There was no ankylosis of the knee. Tests of joint stability were negative. The Veteran had a surgical scar that measured 17 cm by 0.1 cm. The scaring was not painful or unstable. It did not measure greater than 39 square cm and was not located on the head, face or neck. The remaining effective function of the left knee was not such that it would be equally well served by an amputation with prosthesis. Another VA examination was conducted in April 2019. It was again noted that the Veteran had undertone a total knee replacement in November 2016. Examination of the left knee showed range of motion from 0 degrees extension to 115 degrees flexion. There was no pain noted on examination. There was no evidence of localized tenderness or pain on palpation of the joint. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing without loss of function or functional loss. The Veteran was not examined immediately after repetitive use over time, but the examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The Veteran’s left knee was not examined during a flare up. The left knee disability did cause disturbance of locomotion and interference with standing. There was no reduction in muscle strength and no muscle atrophy. There was no ankylosis, history of recurrent subluxation, lateral instability, or history of effusion. Joint stability testing was normal. The Veteran’s total left knee replacement was not found to have significant residuals. The examiner remarked that there was no evidence of pain on passive range of motion or on non-weight bearing of the left knee. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran’s knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated 0 percent disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated 0 percent disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, 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.”). 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). In October 2017, the Veteran’s left knee total knee replacement surgery was manifested by range of motion limited to 15 degrees extension to 120 degrees flexion, with pain on motion that did not cause functional loss. The examiner did not describe chronic residuals consisting of severe painful motion or weakness such that a 60 percent rating is warranted under Diagnostic Code 5055. That code provides that a minimum rating of 30 percent will be assigned with a rating in excess of 30 percent based on residual weakness, pain, or limitation of motion rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. While limitation of extension to 15 degrees warrants a 20 percent rating, this is less than the minimum that may be assigned for the TKA of the knee. Flexion limited to 120 degrees is not compensable. There is no ankylosis of the knee joint such that Diagnostic Code 5256 should be applied. The evaluation in April 2019 shows that the Veteran had full extension with flexion to 115 degrees. The examiner specifically found no significant residuals from the Veteran’s left knee TKA. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for increased rating for the residuals of a left knee TKA, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to an initial compensable rating for a scar of the left knee Service connection for a postoperative scar of the left knee was granted by the RO in November 2017. A noncompensable rating was assigned at that time under the provisions of Diagnostic Code 7802. Diagnostic Code 7801 applies to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one that is associated with underlying soft tissue damage. Id. at Note 1. Diagnostic Code 7802 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one that is not associated with underlying soft tissue damage. Id. at Note 1. Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Additionally, scars that are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804 when applicable. Id. at Note 3. According to Diagnostic Code 7805, which applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, VA is to evaluate any disabling effect(s) not considered in a rating provided under such Diagnostic Codes under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. As was noted above, on examination by VA in October 2017, the Veteran was observed to have a surgical scar that measured 17 cm by 0.1 cm. The scarring was not painful or unstable. On examination by VA on April 23, 2019, the Veteran’s left knee scar was found to measure 14 cm by 0.1 cm. The scar was found to be tender to palpation. It was not unstable upon inspection or have underlying soft tissue damage. It was well-healed on the knee anteriorly from the knee replacement surgery. Based on the foregoing, the Board finds that prior to April 23, 2019, a compensable rating was not warranted for the Veteran’s scar of the left knee. See 38 C.F.R. § 4.118, Diagnostic Coded 7802. It did not measure greater than 39 square cm and was not located on the head, face or neck. It also was not painful or unstable. From April 23, 2019, however, the Veteran’s scar of the left knee has been noted to be tender to palpation. Resolving reasonable doubt in his favor, the Board finds that the criteria for rating the Veteran’s left knee scar as an unstable or painful scar were met as of this date. Therefore, a 10 percent rating under 38 C.F.R. § 4.118, Diagnostic Code 7804, is warranted as of April 23, 2019. A still higher rating in excess of 10 percent is not warranted, however, because the Veteran is not shown to have three or four scars that are unstable or painful. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.