Citation Nr: 20042779 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 13-24 555 DATE: June 24, 2020 ORDER Entitlement to an increased rating of 20 percent, but no higher, for a right knee disability prior to March 16, 2015 is granted. Entitlement to a rating greater than 60 percent disabling for a right knee disability from May 1, 2016 to September 23, 2016 is denied. Entitlement to a rating greater than 60 percent disabling for a right knee disability from November 1, 2017 is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability is entitled to an increased rating of 20 percent, but no higher, for the period prior to March 16, 2015, which is the maximum schedular rating permitted for dislocation of semilunar cartilage. 2. For the period from May 1, 2016 to September 23, 2016, the Veteran’s right knee disability has manifested severe painful motion. 3. For the period from November 1, 2017, the Veteran’s right knee disability has manifested severe painful motion. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher for right knee disability prior to March 16, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. 2. From May 1, 2016 to September 23, 2016, the criteria for a disability rating greater than 60 percent for a right knee disability, status post replacement have not been met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262. 3. From November 1, 2017, the criteria for a disability rating greater than 60 percent for a right knee disability, status post replacement have not been met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1976 to June 1980. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in December 2017 for further development, include requesting the Agency of Original Jurisdiction (AOJ) to obtain VA examinations for the Veteran’s knee and scars. These examinations were obtained, and thus, the Board finds that its remand instructions were substantially complied with regarding the right knee claims. Stegall v. West, 11 Vet. App. 268 (1998). The requested development from the December 2017 remand regarding the entitlement to service connection for sleep apnea claim will be addressed below. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity resulting from service-connected disability; separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, the higher evaluation 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. 1. Entitlement to an increased rating of 20 percent, but no higher, for a right knee disability prior to March 16, 2015 is granted. The Veteran seeks an increased rating for his right knee disability prior to March 16, 2015 without specifically raised contentions. See July 2012 Notice of Disagreement. The Veteran was rated at 10 percent disabling for post-operative right knee anterior cruciate tear and lateral meniscus injury with degenerative joint disease under DC 5010-5260. It was noted that this rating was assigned based on painful motion of the knee. DC 5010 (“Arthritis, due to trauma”) states “Rate as arthritis, degenerative.” DC 5003 (“Arthritis, degenerative”) states, as relevant, that degenerative arthritis “will be rated on the basis of limitation of motion under the appropriate [DCs] for the specific joint or joints involved.” Under DC 5260 (“ Leg, limitation of extension of”), a 0 percent rating is warranted for flexion limited to 60 degrees, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees and a 30 percent rating (the highest schedular rating available) is warranted for flexion limited to 15 degrees. 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.”). The Veteran underwent a VA examination in January 2011. The Veteran had normal right knee flexion (0 to 140 degrees) with normal extension. There was objective evidence of pain with active motion. The Veteran also underwent another VA examination in August 2011. The examiner noted right knee flexion was 0 to 110 degrees with pain at 90 to 110 degrees and normal extension. The Board has considered whether the Veteran is entitled to a higher rating under DC 5260 or DC 5261. As the Veteran flexion and extension was noted to be normal in one examination and not meeting the minimum criteria for a compensable rating in the other examination, the Board finds that this would result in a noncompensable rating. DC 5258 potentially allows for a higher (single and maximum) 20 percent disability rating for dislocation of semilunar cartilage with frequent episodes of joint “locking,” pain, and effusion. The Board finds a higher rating under DC 5258, in lieu of the 10 percent rating under 5010-5260, is warranted during this period. The August 2011 VA examiner indicated there is evidence of frequent episodes of pain and effusion in the right knee. Therefore, the Board finds a higher rating of 20 percent is warranted. The remaining ratings applicable to the knee for ankylosis, subluxation or instability, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum are not warranted at any time during this appeal period as these conditions are not present here. 38 C.F.R. § 4.71a. The Board has also considered whether the Veteran is entitled to separate compensable rating for his right knee scars. The January and August 2011 VA examiners indicated that the Veteran has right knee scars that are 0.75 x 0.3 cm lateral and inferior to the patella, medial aspect 0.5 x 0.2 cm; 0.5 x 0.3 cm. Linear scars are rated according to the Diagnostic Code (DC) 7805, which provides that such scars should be rated based on their effects under DCs 7800, 7801, 7802, 7804. DC 7800 is inapplicable because the Veteran does not have scars of the head, face, or neck. DC 7801 rates scars based on their surface area. Scars of less than 6 square inches are noncompensable. A higher rating would require more than 6 square inches of scars. The Veteran does not meet this criterion. DC 7802 provides a compensable rating of 10 percent for superficial scars that total more than 144 square inches. The Veteran’s scar is less than 144 square inches in size, and thus noncompensable. DC 7804 rates painful and unstable scars based on the number of such scars. Diagnostic Code 7804 evaluates one or two scars that are unstable (frequent loss of covering of the skin over the scar) or painful at 10 percent; three or four scars that are unstable or painful at 20 percent; five or more scars that are unstable or painful 30 percent. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, DC 7804, Note (1). If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804, Note (2). Scars can receive separate evaluations under DCs 7800, 7801, 7802, and 7805, despite also being rated under DC 7804. See 38 C.F.R. § 4.118, DC 7804, Note (3). The Board finds that the Veteran’s scar does not meet the criteria to be compensable under this diagnostic code because the January 2011 VA examiner noted the Veteran’s scars were nontender and stable. Based on the medical evidence of record, the Board finds that the evidence supports an increase of 20 percent, but no higher, under DC 5258 during this period for the Veteran’s right knee disability. 2. Entitlement to a rating greater than 60 percent disabling for a right knee disability from May 1, 2016 to September 23, 2016 is denied. In an April 2016 rating decision, the RO granted an evaluation of 100 percent for a right total knee replacement (formerly rated as anterior cruciate tear and lateral meniscus injury with degenerative joint disease, postoperative right under DC 5010-5260) effective March 16, 2015 based on surgical or other treatment necessitating convalescence. An evaluation of 100 percent was assigned for 13 months following prosthetic replacement of the knee joint. An evaluation of 30 percent was assigned from May 1, 2016, the first month following the Veteran’s period of schedular convalescence following a joint replacement. The Veteran filed a timely notice of disagreement in June 2016 and indicated he was entitled to a higher rating than 30 percent. A May 2017 rating decision increased the evaluation of right knee total replacement to 60 percent from May 1, 2016 to September 23, 2016 for post- prosthetic replacement with chronic residuals of severe pain. The Veteran’s total knee replacement is rated under Diagnostic Code 5055. Under that code, a 30 percent rating is the minimum possible rating assignable. A 60 percent rating is warranted for a total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 100 percent rating is warranted for the one year following implantation of the prosthesis. Intermediate degrees of residual weakness, pain, or limitation of motion (a level of disability in between those contemplated by the 30 and 60 percent ratings) are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71 (a), Diagnostic Code 5055. The Board finds that under DC 5055, the 60 percent rating from May 1, 2016 to September 23, 2016 is appropriate. The evidence shows the Veteran’s condition manifested with chronic residuals consisting of severe painful motion or weakness in his knee joint. The Board further finds that a 100 percent rating under Diagnostic Code 5055 for the period on appeal, not including the periods that have already been assigned a 100 percent rating, is not applicable, as it has been more than one year following implantation of the prosthesis. In light of this decision, the Veteran now is in receipt of the highest allowable schedular rating for his right knee; as such, a rating in excess of 60 percent is not warranted pursuant to Diagnostic Code 5055. 3. Entitlement to a rating greater than 60 percent disabling for a right knee disability from November 1, 2017 is denied. In a February 2020 rating decision, the RO increased the Veteran’s 30 percent rating to 60 percent effective November 1, 2017. The 60 percent evaluation was continued following a temporary 100 percent evaluation ending April 1, 2019. This additional rating was based on chronic residuals of severe painful motion. Diagnostic Code 5055 provides criteria for rating knee disabilities that require knee replacement surgery. Under those criteria, a 100 percent disability rating is assigned for one year following the surgery. Thereafter, the disability is to be rated as being no less than 30 percent disabling, but may be assigned a higher disability rating on the basis of demonstrated residual weakness, pain, or loss of motion consistent with the criteria under Diagnostic Codes 5256, 5261, or 5262. A 60 percent disability rating may also be assigned where the post-surgery evidence shows chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71 (a). The Board finds that under DC 5055, the 60 percent rating from November 1, 2017 is appropriate. The evidence shows the Veteran’s condition manifested with chronic residuals consisting of severe painful motion or weakness in his knee joint. The Board further finds that a 100 percent rating under Diagnostic Code 5055 for the period on appeal, not including the periods that have already been assigned a 100 percent rating, is not applicable, as it has been more than one year following implantation of the prosthesis. In light of this decision, the Veteran now is in receipt of the highest allowable schedular rating for his right knee; as such, a rating in excess of 60 percent is not warranted pursuant to Diagnostic Code 5055. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. This case was previously remanded in December 2017 in order to obtain an addendum opinion addressing whether the Veteran’s weight gain and stature in service caused his sleep apnea. In July 2018, a VA addendum opinion was completed. The examiner opined it was less likely than not that the Veteran’s sleep apnea is related to service including consideration of his weight gain and physical stature during service. However, in reaching this conclusion, the examiner did not address the Veteran’s weight gain or stature in service. Instead, he focused on the Veteran’s weight gain after separation from service in his rationale. The Board therefore finds that its remand instructions were not substantially complied with as the examiner failed to specifically address as instructed, the Veteran’s weight gain and stature in service. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, a remand for an addendum opinion is warranted. These matters are REMANDED for the following actions: 1. Obtain an addendum opinion from the July 2018 VA examiner, or an alternative VA examiner if the July 2018 is unavailable, regarding the Veteran’s sleep apnea. If the examiner feels a new examination is necessary or one is warranted based upon any additional evidence obtained, one must be provided. The examiner is asked to opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea is causally related to his active service, to include consideration of his weight gain and physical stature during service. A thorough rationale for any opinion offered is requested. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner’s attention is invited to the Veteran’s assertion that he experienced weight gain during service. (Continued on the next page)   The examiner’s attention is also invited to the Veteran’s service treatment records that show the Veteran weighed 192 pounds at his reenlistment examination in October 1982 (the beginning of his second continuous period of active service) and weighed 235 pounds at his retirement examination in May 1996, reflecting a 43 pound weight gain during that period of active service. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.