Citation Nr: 20021237 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 10-18 406 DATE: March 25, 2020 ORDER Entitlement to an evaluation in excess of 20 percent disabling prior to July 12, 2010, for residuals of a right meniscectomy with degenerative joint disease (DJD) is denied. Entitlement to an evaluation in excess of 30 percent for a total right knee replacement from November 1, 2011, to include extension of a temporary total rating based upon a need for convalescence is denied. FINDINGS OF FACT 1. Prior to July 12, 2010, the Veteran’s residuals of a right meniscectomy with DJD did not exhibit severe recurrent subluxation, lateral instability, malunion, tibia or fibula impairment, or ankylosis. 2. From November 1, 2011, the evidence of record does not indicate that the Veteran’s residuals, total right knee replacement resulted in chronic residuals of severe painful motion or weakness of the affected extremity; nor does it indicate knee ankylosis, extension limited to 30-44 degrees, or nonunion of the tibia and fibula. 3. Post-operative convalescence following August 2011 right patella arthoplasty was not required beyond October 31, 2011. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 20 percent disabling prior to July 12, 2010, for residuals of a right meniscectomy with degenerative joint disease (DJD) have not been met. 38 U.S.C.§§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (2019). 2. The criteria for an evaluation in excess of 30 percent effective November 1, 2011, for residuals of a right total knee replacement have not been met. 38 U.S.C.§§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.45, 4.59, 4.71a, DC 5055 (2019). 3. The criteria for entitlement to an extension of a temporary total rating beyond October 31, 2011, based on convalescence following August 2011 right patella arthoplasty have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to July 1974, and from June 1978 to November 1982. In January 2018, the Board most recently remanded the issues below on appeal for further development, and the case has since been returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Entitlement to an evaluation in excess of 20 percent disabling prior to July 12, 2010, for residuals of a right meniscectomy with degenerative joint disease (DJD) In a July 2009 rating decision, the Veteran’s 20 percent evaluation was continued for his residuals of a right meniscectomy with DJD. He has disagreed with this determination. In a subsequent June 2013 rating decision, the Veteran was awarded a separate 20 percent evaluation for right knee instability. He continues to disagree with the evaluations awarded. Therefore, the issue before the Board is whether the Veteran is entitled to an evaluation in excess of 20 percent disabling from March 20, 2009, the date which his claim for an increased evaluation was received, to July 12, 2010. The Veteran's right knee instability for the appeal period is evaluated under DC 5257. DC 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. 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). "DC 5257 is unambiguous; by its plain language, it provides compensation for 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). Other DCs available for knee disabilities under 38 C.F.R. § 4.17a are as follows: DC 5256 provides for ratings between 30 and 60 percent for ankylosis of a knee. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). DC 5262 provides for evaluation of impairment of the tibia and fibula. With malunion and slight knee or ankle disability a 10 percent rating is warranted; with moderate knee or ankle disability a 20 percent rating is warranted; and with marked knee or ankle disability a 30 percent rating is warranted. For a 40 percent rating there must be nonunion of the tibia or fibula with loose motion, requiring a brace. 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). March 2009 VA x-rays indicate right osteoarthritis of both knees predominantly involving the right and associated with bilateral medial joint compartment cartilage is degeneration with bilateral genu varum. A February 2010 VA treatment note indicates the Veteran came in with bilateral knee pain and abnormal gait. Upon examination, the examiner noted joint tenderness in addition to effusion. Based on the foregoing evidence of record, the Board finds a higher evaluation is not warranted for the appeal period. Indeed, the entire evidence of record for this appeal period is silent for severe recurrent subluxation, lateral instability, or chronic residuals of severe painful motion or weakness, nor does it indicate knee ankylosis, extension limited to 30-44 degrees, or nonunion of the tibia and fibula, symptomatology indicative of a higher evaluation across applicable knee criteria. While the Board acknowledges the Veteran’s contention that March 2009 VA treatment records were not given due consideration as to the severity of his right knee condition, it has not found that this evidence or any other indicates that the Veteran exhibits symptomatology warranting a higher evaluation. The Board concludes that the preponderance of the evidence is against the claim, and that a higher evaluation during the period is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert, 1 Vet. App. at 55. Entitlement to an evaluation in excess of 30 percent for a total right knee replacement from November 1, 2011, to include extension of a temporary total rating based upon a need for convalescence In a September 2010 rating decision, the Veteran’s residuals degenerative joint disease right knee, status post total knee replacement was increased to 100 percent based on surgical or other treatment necessitating convalescence effective July 12, 2010, with an evaluation of 30 percent assigned, after subsequent correction by the RO, from November 1, 2011. The Veteran disagreed with that evaluation. Accordingly, the issue before the Board is whether the Veteran is entitled to an initial evaluation in excess of 30 percent from November 1, 2011, to include extension of a temporary total rating based upon a need for convalescence. Pursuant to regulation, temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). Total ratings for convalescence may be extended for one, two, or three months beyond the initial three months for any of the three reasons set forth above. 38 C.F.R. § 4.30(b)(1). Extensions of one or more months up to six months beyond the initial six months period may be made for reasons (2) or (3) above upon approval of the Veterans Service Center Manager. Id. at (b)(2). As noted above, the Veteran’s total right knee replacement, is currently rated 30 percent disabling beginning November 1, 2011. This is the minimum rating for a total knee replacement under DC 5055. A higher rating of 60 percent requires chronic residuals of severe painful motion or weakness of the affected extremity. 38 C.F.R. § 4.71a, DC 5055 (2019). VA treatment records indicate the Veteran underwent patella resurfacing on August 8, 2011 and was subsequently discharged on August 10, 2011. A private October 2011 physical therapy note indicates the Veteran had limited functionality of his right knee and a plan of 12 weeks of physical therapy was planned. In May 2013, the Veteran attended a VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) examination. The Veteran indicated that his right knee “gives way” for well over a decade along with weakness. Upon examination, intermediate degrees of residual weakness, pain, or limitation of motion were noted. Additionally, he stated: The Veteran underwent a right patella resurfacing (not patellar replacement) on 8/2011. Review of the VA medical records regarding follow up, after this procedure show that the Veteran was “progressing well.” 8/1/2012: The Orthopedic specialist noted “ s/p resurfacing arthroplasty R patella, progressing as expected , needs to have his disability benefits revisited again as he needed a 9 months convalescence after his last r knee replacement surgery that has not bee resolved 13 months after surgery. Convalescence for tka (arthroplasty) is 9-12 months.” However the Veteran did not have a total knee replacement in 8/2011, rather he had a resurfacing of the right patella. The Veteran was diagnosed to have right lower extremity DVT and PE on 8/28/2012, due to the travel (see 8/28/2012 ambulatory note: “was on a plane from FM to Cincinnati (9 hrs total flight) 3 days ago and drove 15 hrs from Cincinnati to FM arriving in FM at 12:45 am today”) Medical literature supports that DVT and this PE can result if there is a “past history of DVT; coagulopathy that makes more likely to clot than normal (such as factor V Leiden); slow blood flow in a deep vein due to lack of movement such as during long travel; Overweight or obesity and history of Smoking.” Medical literature also supports that the risk of developing DVT postoperatively is the highest in the 1st 6 weeks after surgery. Thereafter the risk of postoperative DVT decreases but patients are still high risk for DVT for about 6 weeks postoperatively. The Veteran developed right lower extremity VT and PE about 13 months after his resurfacing surgery. Thus the right lower extremity DVT and PE was not due to his right patellar resurfacing surgery. Thus the convalescence period s/p the Veteran’s right patella resurfacing was not prolonged but was as expected. The need for the Veteran’s convalescence s/p right patellar resurfacing surgery ended 10/11/2011 when Orthopedics noted “s/p r TKR and patellar arthroplasty, progressing as expected, off all aids, well healed, arom 0-105 degrees, x-rays: satisfactory positioning of implants. Plan: 1. swim, bike, walk, 2. Work on quad and hams” In a September 2017 private medical correspondence, M.M., the Veteran’s previous physical therapist, indicated that she was unable to access past records and that whenever she discharged patients this almost always meant that they had returned to a basic level of functioning but would need continued work to return to the full prior level of function. In March 2018, as required by the January 2018 Board remand, the Veteran attended a VA Knee and Lower Leg Conditions DBQ examination. The Veteran described joint pain around the knee cap when he walks more than 100 yards, and “getting up off cards (sic) and chairs still bothers him - but better than what it was before the surgery.” Upon examination, range of motion (ROM) was noted as flexion to 120 degrees and normal extension. No pain, flare-ups, atrophy, ankylosis, subluxation, joint instability, effusion, use of assistive devices, evidence of pain on passive ROM testing, or evidence of pain in non-weight bearing were noted on examination. Social Security Administration (SSA) medical records indicate the Veteran is receiving SSA benefits due to his right knee. The Board finds that the preponderance of the evidence is against assigning a rating greater than 30 percent effective November 1, 2011, for right total knee replacement. Indeed, the record of evidence following this date is silent for indication that the Veteran suffered from chronic residuals of severe painful motion or weakness of his right knee. Further, the evidence of record is silent for any knee ankylosis, extension limited to 30-44 degrees, or nonunion of the tibia and fibula, all indicative of higher evaluations under several different knee diagnostic code criteria. Given the lack of any evidence that suggests a worsening of the condition during the appeal period, an evaluation in excess of 30 percent from November 1, 2011 is not justified. The Veteran, therefore, has not identified or submitted any evidence demonstrating his entitlement to a rating greater than 30 percent effective November 1, 2011, for his service-connected residuals of a right total knee replacement. In summary, the Board finds that the criteria for a rating greater than 30 percent effective November 1, 2011, for residuals of a right total knee replacement have not been met. Further, the Board finds that the medical evidence does not indicate that the Veteran's disability required convalescence after October 31, 2011. While the Board acknowledges that the Veteran's right knee resulted in functional impairment and pain during this period, it was accounted for by his schedular evaluation. There was also no indication that the Veteran had incompletely healed surgical wounds, could not work, or that he continued to use a wheelchair or crutches beyond October 31, 2011. The Board concludes that the preponderance of the evidence is against the claim, and that the extension of a temporary total evaluation, based on the need for convalescence following August 8, 2011 right patellar arthroplasty is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert, 1 Vet. App. at 55. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.A. Elliott II, Associate Counsel 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.