Citation Nr: 20039934 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 16-13 226 DATE: June 11, 2020 ORDER Entitlement to a disability rating of 60 percent, but no higher, for status post total left knee arthoplasty from July 1, 2012 to May 16, 2019, is granted. Entitlement to a disability rating in excess of 60 percent for status post total left knee arthoplasty from May 17, 2019, forward, is denied. FINDINGS OF FACT 1. From July 1, 2012 to May 16, 2019, the Veteran’s status post total left knee arthoplasty was manifested by chronic residuals consisting of severe painful motion. 2. From July 1, 2012, forward, the Veteran’s status post total left knee arthoplasty is rated as 60 percent disabling. CONCLUSIONS OF LAW 1. From July 1, 2012 to May 16, 2019, the criteria for entitlement to a disability rating of 60 percent, but no higher, for status post total left knee arthoplasty have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5055. 2. From May 17, 2019, forward, a disability evaluation in excess of 60 percent for status post total left knee arthoplasty is precluded as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to April 1964 and from July 1964 to April 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to a rating in excess of 30 percent for status post total left knee arthoplasty. In June 2018, the Board remanded the claim for further development. In March 2020, the RO awarded a 60 percent for status post total left knee arthoplasty, effective May 17, 2019. 1. Entitlement to a disability rating of 60 percent, but no higher, for status post total left knee arthoplasty, from July 1, 2012 to May 16, 2019, is granted. 2. Entitlement to a disability rating in excess of 60 percent for status post total left knee arthoplasty, from May 17, 2019, forward, is denied. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. 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 by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and the residual conditions. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. Id.; § 4.3. A Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. However, the present level of the disability is of primary concern where the issue is entitlement to an increase in the rating for a disability for which service connection has already been established. See Francisco v. Brown, 7 Vet. App. 55 (1994). In such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 The Veteran underwent a left total knee replacement on May 27, 2011 and was rated under Diagnostic Code 5055. In a January 2012 rating decision, he was assigned an evaluation of 100 percent effective from May 27, 2011 to June 30, 2012, and an evaluation of 30 percent from July 1, 2012, forward. Under DC 5055, a 100 percent rating is provided for one year following implantation of prosthesis. After one year, a minimum 30 percent rating is provided. A maximum 60 percent is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. In addition, intermediate degrees of residual weakness, pain, or limitation of motion may be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran submitted a claim for an increased rating for his left knee disability in December 2012. Private treatment records dated from July 2012 to February 2013 showed that the Veteran had effusion and severe and persistent pain in his knee, even at night, with motion limited at worst from 15 degrees of extension to 90 degrees of extension. The severity of the Veteran’s knee pain ranged from a 7 to 10 on a scale from 1 to 10. In February 2013, he was referred to pain management for chronic left knee pain. Private treatment records dated in January 2014 showed that the Veteran’s left knee was tender and had a flexion about 15 to 45 degrees before the Veteran stopped the physician from flexing, and showed instability. See January 2014 Private Treatment Record. The private physician concluded that the Veteran had a persistently painful left knee with recurrent effusions. See id. A private treatment record dated in the August 2015 showed that the Veteran’s range of motion was 10 to 60 degrees, that he was globally stiff through the knee, that he did not have an intact extensor mechanism, and that he was instructed to start taking an antiinflammatory and was refilled for tramadol. See August 2015 Private Treatment Record. In September 2015, the Veteran submitted a letter stating that he had 60% mobility in his left knee, and that he takes Meloxicam and two Tylenol extra strength daily to combat inflammation and pain. See September 2015 Correspondence. In June 2016, a VA orthopedic surgeon assessed the Veteran with a total left knee arthroplasty severe arthrofibrosis, stating that “at this point, there is nothing that can be done to improve his ROM and improve his myotendinous pain.” The VA orthopedic surgeon recommended that the Veteran use a cane to walk, which the Veteran confirmed that he already did. See June 2016 VA Treatment Record. A June 2017 VA treatment record showed that the Veteran’s left knee had been hurting more, that it would swell up if he walked any distance, that Tylenol did not help with the pain and that this pain was constant, with the Veteran estimating it to be rated 8 out of 10 and aggravated by walking. A November 2018 VA treatment record showed that the Veteran had a left total knee replacement with arthoplasty with severe arthrofibrosis, that he had constant pain that worsened with weight bearing or walking, that his pain was sharp, that he can walk up to 50 feet before he has to stop due to worsening pain, that his knee would swell, and that he had fallen several times since he had last been seen. See November 2018 VA Treatment Record. A January 2019 VA treatment record showed that the Veteran suffered stiffness and pain in his left knee and that he had his left knee drained twice, with the first experience relieving pain for 2 weeks and the second draining with no relief; the Veteran rated his pain chronic and severe at 9 out of 10. See January 2019 VA Treatment Record. The VA orthopedic surgeon again concluded that the Veteran’s total knee replacement did not improve his severe arthrofibrosis, and that nothing can be done to improve his range of motion or his myotendinous pain. See id. In March 2019, the Veteran submitted a letter from his wife where she testified that his leg does not bend properly, that to get into a car he has to lean over the center console because he cannot bend his left leg, that he has must manually pull his left leg up stairs while holding on to the handrail, that walking incline causes his leg pain to worsen, that prolonged walking requires many rests, that he uses a cane, that his leg is swollen most of the time, and that he takes Meloxicam and Tylenol for pain and inflammation. See March 2019 Lay Statement. She also stated that the Veteran moans in his sleep due to the pain. See id. The Veteran also submitted a statement testifying that his left knee has been a constant problem for the past 8 years, that he has trouble climbing stairs, that he has instability, that he has fallen several times due to his left knee, that he takes pain pills to sleep and must sleep with a pillow between his knees, and that he would rate the pain an 8-9 out of 10 at all times. See March 2019 Correspondence. Based on the above, the Board finds that the Veteran’s total left knee arthoplasty was manifested by chronic residuals consisting of severe painful motion, warranting the assignment of a 60 percent under Diagnostic Code 5055. The lay and medical evidence of record is replete with complaints of severe and persistent left knee pain with swelling and limited motion. Private and VA treatment records showed consistent complaints of left knee pain with severity as high as 9/10, as well as findings of locking, instability, limited motion, stiffness, swelling, and inflammation. The Veteran reported that simple tasks like climbing stairs, getting into a car, or even walking a short distance are difficult and painful because of his left knee. Indeed, his wife reported that he cannot bend his knee to get in and out of a car and must instead lean over the center console to get his left leg inside. The Veteran’s private physician stated that the Veteran had a persistently painful knee, and the Veteran’s VA orthopedic surgeon has stated multiple times that the Veteran’s left knee arthoplasty did not improve his severe arthrofibrosis and that nothing can be done to improve the Veteran’s range of motion or myotendinous pain. The Veteran reported that he takes multiple pills each day for his left knee pain, that he has fallen multiple times due to his left knee, and his wife testified that he moans in his sleep due to the pain. The Board finds the evidence reflects “severe” pain or weakness as contemplated by the 60 percent rating criteria. Therefore, a 60 percent rating is warranted under DC 5055. When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application. See Hazan v. Gober, 10 Vet. App. 511 (1997). Here, the Veteran submitted his claim for an increased rating on December 17, 2012. An effective date as early as December 17, 2011, is assignable if there is a factually ascertainable increase in severity of the Veteran's left knee disability in the one-year period prior to December 17, 2012. 38 C.F.R. § 3.400(o)(2). However, the Veteran’s status post total left knee arthoplasty was already assigned an evaluation of 100 percent effective from May 27, 2011 to June 30, 2012. Therefore, given the evidence of severe painful motion of the left knee reflected in the private treatment records dated from July to December 2012, the Board finds that a 60 percent rating is warranted for the Veteran’s status post total left knee arthoplasty from July 1, 2012 (the day following expiration of the 100 percent rating) to May 16, 2019 (the day prior to the assignment of the 60 percent rating already in effect). Concerning entitlement to rating in excess of 60 percent from July 1, 2012, forward, DC 5055 does not provide for a schedular rating in excess of 60 percent, other than a 100 percent rating for the one-year period following implantation of prosthesis. Therefore, there is no basis in the law for awarding a schedular rating in excess of 60 percent for the disability under DC 5055. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Additionally, as a matter of law the Veteran cannot receive a disability rating in excess of 60 percent due to the “amputation rule”. The "amputation rule" provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. 38 C.F.R. § 4.68. A 60 percent rating is provided for an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71, DCs 5162, 5163, 5164. Because the Veteran's disability is in the knee, or below the middle third of the thigh, the amputation rule precludes a schedular evaluation in excess of 60 percent. Pursuant to the amputation rule, the Veteran is currently in receipt of the maximum available rating for his left knee disability. 38 C.F.R. § 4.68. Therefore, as a matter of law, the claim for an evaluation in excess of 60 percent for status post total left knee arthoplasty must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As such, entitlement to a disability rating in excess of 60 percent for left knee arthroplasty from July 1, 2012 forward, is denied. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.