Citation Nr: 20041035 Decision Date: 06/16/20 Archive Date: 06/16/20 DOCKET NO. 15-35 452A DATE: June 16, 2020 ORDER Entitlement to a disability rating higher than 10 percent for degenerative joint disease left knee (left knee arthritis) prior to October 30, 2018 is denied. Entitlement to a disability rating higher than 10 percent for instability, left knee associated with degenerative joint disease left knee (left knee instability) prior to October 30, 2018 is denied. REMANDED Entitlement to a disability rating higher than 30 percent as of December 1, 2019, for left total knee replacement (TKR) is remanded. Entitlement to a disability rating higher than 10 percent for degenerative joint disease, right knee status post reconstruction surgery (right knee arthritis) is remanded. Entitlement to a disability rating higher than 10 percent for degenerative joint disease, right knee status post reconstruction surgery with instability (right knee instability) is remanded. FINDINGS OF FACT 1. Prior to October 30, 2018, the Veteran’s left knee arthritis was manifested by noncompensable levels of limited flexion and extension; there was no ankylosis, dislocation of semilunar cartilage, or additional symptoms because of the removal of semilunar cartilage, impairment of the tibia/fibula, genu recurvatum, or symptomatic scarring. 2. Prior to October 30, 2018, the Veteran’s left knee instability was manifested by no more than slight impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for left knee arthritis prior to October 30, 2018 are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DCs) 5260, 5261. 2. The criteria for a disability rating higher than 10 percent for left knee instability prior to October 30, 2018 are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1997 to July 2006. In a November 2018 rating decision, the Veteran was granted entitlement to a temporary total rating for convalescence purposes for his left TKR for the period from October 30, 2018 to November 30, 2019 and granted a 30 percent rating, effective December 1, 2019, after the expiration of the temporary total rating. As the temporary 100 percent rating represents a total grant of benefits, that period is not before the Board, however, the period prior to October 30, 2018 and the period from December 1, 2019 to the present remain before the Board. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). Increased Ratings The Veteran is seeking higher disability ratings for his service-connected left knee disabilities. Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to October 30, 2018, the Veteran’s left knee arthritis is rated 10 percent disabling under DC 5260 for limited leg flexion. 38 C.F.R. § 4.71a. There is also a separate 10 percent disability rating in effect for left knee instability under DC 5257. Id. Under 38 C.F.R. § 4.71a, DC 5257 covers “other impairment of the knee,” and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. The terms “mild,” “moderate,” “moderately severe” and “severe” are not defined in the Schedule. 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 use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under DC 5260 where flexion is limited to 45 degrees, a 10 percent rating is assigned. When flexion is limited to 30 degrees, a 20 percent rating is assigned; and when flexion is limited to 15 degrees, a 30 percent rating is assigned. 38 C.F.R. § 4.71a. Separate ratings may be assigned for disability of the same joint under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg). See VAOPGCPREC 9-04. Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Under DC 5261, where extension is limited to 10 degrees, a 10 percent rating is assigned. When extension is limited to 15 degrees, a 20 percent rating is assigned; when limited to 20 degrees, a 30 percent disabling is assigned; when limited to 30 degrees, a 40 percent rating is assigned and when extension is limited to 45 degrees, a 50 percent rating is assigned. Id. Normal range of motion in the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Evidence relevant to the severity of the Veteran’s service-connected left knee disabilities includes VA outpatient records dated from 2008 to 2013 which show his left knee problems were chronic and manageable with a conservative treatment plan of pain medication, physical therapy, activity modification, and injections. In general range left knee motion was normal with minimal to no effusion and there was slight varus deformity. When examined by VA in July 2014, the Veteran reported flare-ups of pain with prolonged standing or walking. Range of motion testing showed 140 degrees of flexion or greater with pain and full extension. There was no additional loss of motion after repetitive testing. Functional loss/impairment included pain on movement, swelling, disturbance of locomotion and interference with sitting and there was tenderness on palpation. Muscle strength testing was 5/5 and joint stability testing was normal, with no anterior, posterior, or medial-lateral instability. There were no additional factors contributing to disability including recurrent patellar subluxation/dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment or meniscal conditions. The Veteran did not require any assistive devices to walk and imaging studies confirmed arthritis. The Veteran’s left knee impacted his ability to perform heavy manual labor or prolonged walking, but he was able to do sedentary work. Subsequently dated treatment records are not materially different from those reported on prior VA examination. In 2014 the Veteran reported continued pain, stiffness and decreased ability to perform prolonged standing, walking, or weightbearing activities. Examination revealed range of motion 0 to 120 degrees. Ligaments were stable and McMurray’s and anterior drawer testing were both negative. Muscle strength was slightly reduced at 4/5. The Veteran was neurovascularly intact and sensation was grossly intact. During an outpatient evaluation in 2015 he reported significantly worsened knee pain, stiffness, decreased range of motion, and an inability to perform activities of daily living as tolerated. During VA examination in October 2016 the Veteran reported localized knee pain to the medial and popliteal areas rated as 6/10 in intensity that is not relived by physical therapy or knee injections. He also reported constant flare-ups for the last 6 months aggravated by standing or walking and that affect his ability to do his job as a correctional contract monitor. The Veteran stated he can walk less than 50 feet before his knee starts to hurt. Range of motion testing showed 125 degrees of flexion and full extension, but passive range of motion was full. Pain was noted on exam and with weight bearing. There was tenderness on palpation of the patella tendon, medial joint space, and popliteal. There was no additional loss of motion after repetitive testing and no additional factors contributing to disability. Muscle strength testing was 5/5 with no atrophy or ankylosis. Joint stability testing was normal, with no anterior, posterior, or medial-lateral instability or recurrent effusion. There were no additional factors contributing to disability including recurrent patellar subluxation/dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment or meniscal conditions. The Veteran regularly wore a knee brace and occasionally used a cane. The examiner noted it was conceivable that the Veteran’s left knee pain could further limit function particularly after strenuous and repetitive activities, but it was not feasible to attempt to express any of this in terms of additional limitation of motion, as these matters cannot be determined with any degree of medical certainty. The examiner noted the Veteran had mild decreased range of motion with verbalized mild pain during physical exam, but no objective weakness, laxity, flareups, instability or additional loss of motion or function after 3 repetitions. The Veteran was most recently examined by VA in August 2018. At that time, it was noted he was scheduled for left knee replacement in October. He complained of aching and sharp pain aggravated by repeated flexion, prolonged standing and walking and transitioning from sitting to standing. Range of motion testing showed 110 degrees of flexion and full extension with pain. There was no additional loss of motion after repetitive testing. There was pain with weight bearing and evidence of crepitus. The examiner was unable to say if pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time or during a flare-up without mere speculation. It was explained that there was is no conceptual or empirical basis for making such a determination without directly observing function under such conditions. Muscle strength testing was 5/5 with no atrophy or ankylosis. Joint stability testing was normal, with no anterior, posterior, or medial-lateral instability. There were no additional factors contributing to disability including recurrent patellar subluxation, lateral instability or recurrent effusion, dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment or meniscal conditions. The Veteran regularly wore a brace and used a cane for chronic knee pain. His left knee interfered with his ability to walk or stand for long periods without frequent rest and he was unable to lift heavy items, bend or squat. An October 2018 VA examination report shows the Veteran was scheduled for upcoming left knee replacement. His complaints of chronic knee pain were unchanged. He reported frequent flares of severe pain, subjective loss of strength and muscle mass stiffness, crepitus, give-way, and locking. He had multiple knee injections and nerve ablation in the past year without good response. Range of motion testing showed 110 degrees of flexion and full extension with pain that but does not result in/cause functional loss. There was no additional loss of motion after repetitive testing. There was tenderness on palpation, crepitus pain with weight bearing, mild swelling, and left knee varus of 8 degrees. The examiner was unable to say if pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time or during a flare-up without mere speculation since the Veteran was not acutely flared and the history he provided was not specific enough to determine actual range of motion during flares or following repeated use over time. There were no additional factors contributing to disability. Muscle strength testing was 5/5 with no atrophy or ankylosis. Joint stability testing was normal, with no anterior, posterior, or medial-lateral instability. There were no additional factors contributing to disability including recurrent patellar subluxation, lateral instability or recurrent effusion, dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment or meniscal conditions. Based on the preceding evidence, the criteria for a higher rating for the Veteran’s left knee arthritis are not met prior to October 30, 2018. The record during this timeframe shows normal or near-normal range of motion. Even with complaints of pain, there was no limitation of flexion (30 degrees) or extension (15 degrees) sufficient to warrant 20 percent evaluations under DCs 5261 or 5260, respectively. 38 C.F.R. § 4.71a. The clinical findings also do not suggest that range of motion would change to the degree required for higher ratings after repetitive use, due to pain, with weight bearing, or during flare-ups. The Veteran has been able to take care of his activities of daily living and even with repetitive use there is no significant loss of motion. Given that his complaints do not prevent him from achieving essentially normal range of left knee motion they do not support a finding of additional functional loss for a higher rating. The Veteran’s complaints have been taken into consideration, but there is no evidence that his left knee arthritis suffers significant or additional functional loss beyond that contemplated by the assigned 10 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Likewise, the Board finds that the record does not reflect any distinctive period(s) prior to October 30, 2018, where the Veteran’s left knee was manifested by moderate recurrent subluxation and/or instability. Despite his subjective complaints of instability, the objective clinical findings show all ligaments tested were stable. However, the Veteran’s left knee varus of 8 degrees in 2018 suggest some level of instability and thus provide a means to support the current 10 percent rating. Here, the evidence does not establish manifestations of moderate left knee impairment to warrant a 20 percent disability rating under DC 5257. Because DC 5257 is not based on loss of range of motion, 38 C.F.R. § 4.40 and 4.45, pertaining to functional impairment and factors to be considered upon evaluation of the joints, respectively, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Board has also considered whether the Veteran would be entitled to higher or separate ratings under any other diagnostic code, but other analogous ratings are either not applicable or do not offer higher disability rating based on the symptomatology exhibited. In other words, there is no evidence of ankylosis, meniscus impairment, nonunion of the tibia/fibula, or genu recurvatum. See 38 C.F.R. § 4.71a, 5256, 5258, 5259, 5262, 5263. Accordingly, there is no basis for higher ratings. A preponderance of the evidence is against the claims, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). REASONS FOR REMAND The Veteran seeks a higher disability rating for his left knee disability since December 1, 2019 and for his service-connected right knee arthritis and instability. As noted above, the Veteran underwent a left TKR in October 2018. However, his most recent complete VA examination was also in October 2018 and as such, an updated VA examination must be obtained. Also, while the appeal was pending, the Veteran underwent right knee surgery in June 2020. However, his most recent complete VA examination was in 2018 and as such, an updated VA examination must be obtained. The matters are REMANDED for the following action: (Continued on the next page)   1. With any necessary identification of sources and authorization by the Veteran, obtain all clinical records, both VA and non-VA, pertaining to treatment of the Veteran for his left and right knee TKRs that are not already in the claims file. 2. Provide the Veteran a VA examination to ascertain the current severity of the service-connected left and right knee disabilities. The electronic claims file must be made accessible to the examiner for review of the case. Any appropriate evaluations, studies, and testing deemed necessary should be conducted, and the results included in the examination report. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ) and render findings responsive to the criteria for TKR. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Bryant 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.