Citation Nr: 20043781 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 20-18 958 DATE: June 29, 2020 ORDER Revision of a December 2010, rating decision, which assigned a temporary total evaluation from October 20, 2009 to November 30, 2010, for surgical convalescence for a service-connected right knee disability constituted clear and unmistakable error (CUE) and the Veteran’s appeal is denied. Entitlement to a rating in excess of 10 percent for right knee patellofemoral dysfunction (right knee disability), aside for the time period of a temporary total evaluation for surgical convalescence is denied. FINDINGS OF FACT 1. In October 2009, the Veteran underwent a right knee medial and lateral meniscal and lateral surgical repair without complications, and did not involve a total right knee replacement or one year of convalescence. 2. During the period on appeal, the Veteran’s right knee disability has been characterized by no more than forward flexion from 0 to 80 degrees and extension from 80 to 0 degrees, a meniscal tear and no symptoms of subluxation, instability, or effusion. CONCLUSIONS OF LAW 1. The December 2010 rating action which granted a temporary total evaluation based on one year of convalescence following a right knee surgical procedure was clearly and unmistakably erroneous; the reduction of the Veteran’s total evaluation for disability due to convalescence to a total length of 1 month, from October 20, 2009 to December 1, 2009 was proper. 38 U.S.C. §§ 1155, 5109A (2012); 38 C.F.R. § 3.105 (d), 4.30. 2. The criteria for a rating in excess of 10 percent, aside for the time period of a temporary total evaluation for surgical convalescence, for a right knee disability, is denied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to May 1989; from September 1990 to April 1991; from March 2003 to June 2003; and from March 2005 to June 2006. The Veteran’s appeal was most recently remanded by the Board in August 2018 for additional development and readjudication. I. CUE (38 C.F.R. § 3.105) The burden is on VA to demonstrate CUE in the prior rating decision. To establish CUE, VA must show that either the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. See Russell v. Principi, 3 Vet. App. 310 (1992). The proponent of CUE must assert more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412, 418 (1996). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In a December 2010 rating decision, the Veteran was granted a temporary evaluation of 100 percent effective October 20, 2009 and continued through December 1, 2010, based on surgical treatment for right patellofemoral dysfunction. The criteria used for this grant was a total knee replacement under 38 C.F.R. § 4.30 for convalescence. The language of 38 C.F.R. § 4.30 is unchanged since December 2010. Under 38 C.F.R. § 4.30, a temporary total rating for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following the hospital discharge when treatment for 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 case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regularly weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. An extension of 1, 2, or 3 months beyond the initial 3 months may be granted, and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon request. 38 C.F.R. § 4.30. Pursuant to 38 C.F.R. § 4.30 (b), extensions of 1, 2, or 3 months beyond the initial 3 months may be made under § 4.30(a)(1), (2), or (3); and extensions of 1 or more months up to 6 months beyond the initial 6 months may be made under § 4.30(a)(2) or (3). A review of the medical evidence available at the time of the December 2010 rating decision indicates that the Veteran did not meet the criteria for a convalescence period of 1 year. The language in the body of the December 2010 rating decision granted one month of convalescence, starting on October 20, 2009. However, the section at the beginning of the decision, mistakenly continued the convalescence rating until December 1, 2010 when a 10 percent rating was made effective. It appears that this was a typographical error, as the Veteran’s 10 percent rating should have been made effective December 1, 2009. This would have ended the Veteran’s 1-month temporary evaluation of 100 percent for convalescence at the appropriate 1-month length. As noted in 38 C.F.R. § 4.30, the start date of a rating for convalescence is the first day of the month following discharge from the hospital, in this case November 1, 2009. A review of all medical evidence of record failed to show that a total knee replacement has been performed. Therefore, the Veteran did not meet the criteria for convalescence period of 1 year under Diagnostic Code 5055. A temporary 100 percent evaluation is warranted for only 1-month of convalescence under 38 C.F.R. § 4.30 following hospital discharge after an arthroscopic partial meniscectomy and partial synovectomy right knee, abrasive chondroplasty. The Veteran was discharged from the hospital on October 20, 2009 following his surgery. In a follow up treatment note from October 27, 2009, the Veteran was noted to have no right knee effusion, or joint line pain. The Veteran was noted to have mild crepitus with knee extension. Range of motion testing revealed that the Veteran had full extension and flexion to 110 degrees. Given these facts, the Board finds that the December 2010 rating decision contains CUE and therefore revision as appropriate. The Veteran’s appeal is denied. II. Increased rating for right knee disability Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. Part 4 (2020). Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. Slight disability warrants a 10 percent rating and a moderate disability warrants a 20 percent rating. Severe disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2020). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Limitation of extension to 5 degrees warrants a noncompensable rating. Limitation of extension to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a rating of 20 percent. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Limitation of extension to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2020). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limitation of motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). If the Veteran’s shoulder disabilities do not warrant a compensable rating under the appropriate diagnostic codes based on limitation of motion, the minimum compensable rating (10 percent) may be assigned where there is satisfactory evidence of painful motion. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 1. Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate 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. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In February 2007, the Veteran was noted to have right knee pain beginning in 2006. The clinician noted symptoms of weakness, stiffness, swelling, heat, redness, instability or giving way, locking, lack of endurance, and fatigability. In February 2009, the Veteran was afforded a VA examination. The Veteran had complaints of right knee pain, weakness, stiffness, instability, and giving way. Range of motion testing indicate forward flexion from 0 to 120 degrees and full extension. In an October 2009 post-operative treatment note, the Veteran was noted to have no right knee effusion, or joint line pain. The Veteran was noted to have mild crepitus with knee extension. Range of motion testing revealed that the Veteran had full extension and flexion to 110 degrees. The clinician noted no functional loss. A January 2010 treatment note indicates that the Veteran had no right knee effusion or joint line pain. The clinician noted range of motion measurements including flexion from 0 to 110 degrees and full extension. In June 2014, the Veteran was afforded a VA examination. The Veteran was noted to have a right knee lateral meniscal tear beginning in October 2009 and a right knee patellofemoral dysfunction beginning in June 2006. The Veteran’s range of motion measurements included flexion to 130 degrees and full extension. The clinician noted no right knee instability or subluxation, but he was noted to have a meniscal tear. In February 2015, the Veteran was afforded a VA examination. The Veteran was noted to have right knee patellofemoral dysfunction and a right knee lateral meniscal tear. Range of motion testing revealed forward flexion from 0 to 115 degrees and extension from 115 to 0 degrees. The clinician noted no symptoms of instability subluxation or effusion. In December 2019, the Veteran was afforded a VA examination. The Veteran was noted to have right knee patellofemoral dysfunction. Range of motion testing indicated that the Veteran had forward flexion from 0 to 80 degrees and extension from 80 to 0 degrees. The Veteran was noted to have no subluxation, instability, or effusion. During the period on appeal, the Veteran’s right knee disability has been characterized by no more than forward flexion from 0 to 80 degrees and extension from 80 to 0 degrees, a meniscal tear and no symptoms of subluxation, instability, or effusion. The preponderance of the evidence is against the claim for an increased rating. A 10 percent rating is warranted under Diagnostic Code 5257 for instability, aside for the time period of a temporary total evaluation for surgical convalescence. A 20 percent rating is not warranted under Diagnostic Code 5257 because the Veteran does not have moderate instability and subluxation. A continued separate 10 percent rating is warranted for painful motion under 38 C.F.R. § 4.59. The Veteran’s right knee could also be rated under Diagnostic Codes 5260 or 5261 for loss of motion. However, the Veteran’s loss of motion is not severe enough to entitle a compensable rating under Diagnostic Codes 5260 or 5261. The Veteran’s separate 10 percent rating for painful motion should not be disturbed by this Board decision. In making these determinations, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wozniak, 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.