Citation Nr: 20046550 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 15-31 234A DATE: July 13, 2020 ORDER Entitlement to a rating in excess of 10 percent, prior to February 6, 2014, for right knee post-operative arthritis is denied. An initial rating of 10 percent for a right knee meniscal condition, prior to February 6, 2014, is granted. Entitlement to a disability rating of 60 percent for status post total right knee replacement from April 1, 2015 to September 23, 2018, is granted. Entitlement to a disability rating in excess of 60 percent, since October 24, 2019, for status post total right knee replacement is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to February 6, 2014, the Veteran’s right knee disability was productive of painful motion; flexion was not shown to be limited to 30 degrees, and limitation of extension was not limited to 10 degrees to warrant a separate rating. 2. Prior to February 6, 2014, the Veteran’s right knee disability manifested a meniscal condition described under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5259. 3. The Veteran initially underwent a total right knee arthroplasty on February 6, 2014; between April 1, 2015 and September 23, 2018, the Veteran has experienced chronic residuals of this procedure, consisting of severe painful motion. 4. Since October 24, 2019, the Veteran is in receipt of the maximum disability rating under DC 5055 for his right knee disability. 5. The Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to February 6, 2014, the criteria for entitlement to a rating in excess of 10 percent for right knee post-operative arthritis were not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes (DC) 5010-5260. 2. Prior to February 6, 2014, the criteria for an initial rating of 10 percent for a right knee meniscal condition were met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a, DC 5259. 3. The criteria for a disability rating of 60 percent for status post total right knee replacement from April 1, 2015 to September 23, 2018 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DC 5055. 4. The criteria for a rating higher than 60 percent for status post total right knee replacement, since October 24, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DC 5055. 5. The criteria for a total disability rating based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to October 1972. The Veteran testified before the undersigned Veterans Law Judge in August 2018. A transcript is of record. This case was most recently before the Board in March 2020 when the issues listed above were remanded for further development. A service connection claim for a left knee disability was also granted at that time. An April 2020 supplemental statement of the case was most recently issued and the claims are once again before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). 1. Entitlement to a rating in excess of 10 percent, prior to February 6, 2014, for right knee post-operative arthritis is denied. 2. Prior to February 6, 2014, an initial rating of 10 percent for right knee meniscal condition is granted. Prior to February 6, 2014, the Veteran’s right knee disability was rated 10 percent disabling under Diagnostic Codes (DCs) 5010-5260. Diagnostic Code 5010 establishes that arthritis due to trauma is to be rated under the Diagnostic Code governing degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Code, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59. There are several additional Diagnostic Codes which could be applicable to a knee disability. Diagnostic Code 5258 addresses cartilage, semilunar, dislocated, with frequent episodes of ‘locking,’ pain, and effusion into the joint, for which a 20 percent disability rating is assigned. 38 C.F.R. § 4.71a, DC 5258. Under Diagnostic Code 5259, a maximum 10 percent rating is prescribed for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. Diagnostic Code 5260 addresses limitation of flexion of the knee. Under it, a 30 percent rating is for application were flexion is limited to 15 degrees; a 20 percent rating is for application where flexion is limited to 30 degrees; a 10 percent rating is for application where flexion is limited to 45 degrees; a 0 percent rating is for application where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, DC 5260. Diagnostic Code 5261 addresses limitation of extension of the knee. Under it, limitation of extension of the knee to 5 degrees warrants a noncompensable evaluation, limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation, limitation of extension to 15 degrees warrants a 20 percent evaluation, and limitation of extension to 20 degrees warrants a 30 percent evaluation. Limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation, and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation, the highest schedular evaluation under this Diagnostic Code. 38 C.F.R. § 4.71a, DC 5261. Diagnostic Code 5256 governs ankylosis (complete bony fixation) of the knee, which is neither asserted nor shown here. Diagnostic Code 5257 addresses recurrent subluxation or lateral instability of the knee. The Board notes that the criteria under Diagnostic Codes 5257, 5258, 5260, and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown. The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71. Ratings can also be assigned for impairment of the tibia or fibula, or genu recurvatum. 38 C.F.R. § 4.71a, DCs 5262, 5263. Prior to February 6, 2014, the Veteran underwent an April 2013 VA examination. At the April 2013 VA examination the Veteran was diagnosed with right knee post-operative arthritis. The Veteran reported that his knee had progressively gotten worse in pain and it was tough to walk or do things. He reported that his pain will cause him to limp. The Veteran stated that he was on a wait list for a total knee arthroplasty. Range of motion testing revealed flexion to 115 degrees, with pain beginning at 110 degrees. Right knee extension was noted to be 0 degrees. There was no objective evidence of painful motion with extension. The VA examiner noted that the Veteran had additional limitation of range of motion following repetitive-use testing. Joint stability testing was normal. It was noted that there was no evidence or history of recurrent patellar subluxation or dislocation. The April 2013 VA examination report noted that the Veteran did have a meniscus condition (semilunar cartilage) of the right knee with frequent episodes of joint effusion. The VA examiner noted that the Veteran had undergone a meniscectomy of the right knee in 1987. The VA examiner noted that the Veteran regularly used a brace and occasionally used a cane. Upon consideration of the record, the Board finds that a rating in excess of 10 percent for limitation of motion is not warranted for the Veteran’s right knee disability prior to February 6, 2014. Here, the Veteran’s range of motion of the right knee was limited to no more than 115 degrees of flexion, with full extension to 0 degrees. Such findings do not warrant even 10 percent ratings under Diagnostic Codes 5260 and 5261. The Board has additionally considered the treatment records, prior to February 6, 2014. Although the evidence reflects right knee pain, prior to February 6, 2014, the mere presence of pain does not, by itself, constitute functional loss. Rather, the pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011). Put another way, while the Veteran complained of pain, these complaints are adequately contemplated in the 10 percent rating he received prior to February 6, 2014. The evidence, prior to February 6, 2014, did not support the assignment of a rating in excess of 10 percent Diagnostic Codes 5260 or a compensable rating under Diagnostic Code 5261 for his right knee. It is likewise apparent that the criteria to assign separate 10 percent ratings have not been met. VAOPGCPREC 9-2004 (Sept. 17, 2004). It is important for the Veteran to also understand that without problems such as his complaints of pain, there would be no basis for the current 10 percent rating for his right knee disability. In this regard, it is important to note that the range of motion testing does not meet the requirements of a 10 percent evaluation for, let alone a higher evaluation. Without consideration of the problems he has cited, the current evaluation could not be justified. As noted above, Diagnostic Code 5257 addresses recurrent subluxation or lateral instability of the knee. However, here instability and subluxation have not been demonstrated in the record. Nevertheless, based on the findings of the April 2013 VA examination, the Board does find that an additional rating is warranted under Diagnostic Code 5259, prior to February 6, 2014. As noted above, a separate 10 percent rating is warranted for residuals of a meniscectomy that is currently symptomatic. As the VA examiner noted that the Veteran’s right knee was symptomatic, despite undergoing a meniscectomy, the Board concludes that a separate maximum 10 percent rating under Diagnostic Code 5259 was demonstrated prior to February 6, 2014. While the rating schedule under Diagnostic Code 5258 allows for higher scheduler ratings for semilunar cartilage dislocated, a higher or separate rating is not warranted in this case. In fact, as explained above, the Veteran underwent a meniscectomy and is rated accordingly based on residuals of the meniscectomy under Diagnostic Code 5259. Thus, the application of Diagnostic Code 5258 is not warranted. The Board has also considered whether a separate rating is warranted under Diagnostic Code 5263. Diagnostic Code 5263 provides a 10 percent rating for genu recurvatum, acquired or traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. Although the April 2013 VA examiner noted genu varum of the right leg (bow-leggedness), genu recurvatum was not noted. As such a separate rating under Diagnostic Code 5263 is not warranted. Moreover, impairment of the tibia or fibula was not demonstrated to warrant a separate rating under Diagnostic Code 5262. It is important for the Veteran to understand that he is now receiving two separate disability ratings for his right knee disability, prior to February 6, 2014—one rating assigned herein for 10 percent (DC 5259) for his right knee, and the 10 percent rating for his right knee under DCs 5010-5260. The currently assigned ratings for his right knee prior to February 6, 2014, recognize the Veteran’s right knee disability for the problem that it was, and recognize his concerns regarding the disability. Without taking his concerns and the physical problems he experienced with his right knee into consideration, there would be little basis for the current findings. As such, the claim of entitlement to an increased disability evaluation in excess of the currently assigned rating for the Veteran’s right knee disability based on Diagnostic Codes 5010-5260 is denied. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim of entitlement to increased evaluation for the right knee disability, that doctrine does not apply. 38 U.S.C. § 5107(b). However, a separate 10 percent disability rating under Diagnostic Code 5259, for symptomatic knee pain and effusion into the joint, for his right knee is granted. 3. Entitlement to a rating in excess of 30 percent for status post total right knee replacement from April 1, 2015 to September 23, 2018. Currently, the Veteran is in receipt of a 30 percent rating under DC 5055 for his right knee residual symptoms, from April 1, 2015 to September 23, 2018. After reviewing the evidence of record, the Board finds that an increased rating of 60 percent is warranted during this time period. In support of this determination, the Board first notes that, under Diagnostic Code 5055, a 60 percent rating may only be assigned if a veteran experiences chronic residuals consisting of severe painful motion or weakness in the affected lower extremity. Recently, in Tedesco v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held that severe painful motion in the criteria for a 60 percent rating under Diagnostic Code 5055 is not synonymous with limitation of motion. 31 Vet. App. 360, 365-66 (2019). Rather, limitation of motion is but one factor that may be considered in evaluating whether severe painful motion is present for evaluative purposes. Id. at 366. Applying these principles to the instant case, the Board concludes that the Veteran experienced chronic residuals consisting of severe painful motion in the time period following the one-year period after performance of his initial right total knee arthroplasty. Specifically, the record during this time period contains numerous VA and private treatment records reflecting complaints of severe pain in the Veteran’s right knee, despite his February 2014 surgery. In fact, an April 2015 VA treatment record noted that it was appropriate for the Veteran to be outsourced for a possible revision of a failed right total knee arthroplasty. Treatment records during this time period reflect that the Veteran was not active due to his knee pain and was even using a wheelchair at one point. See June 2016 VA treatment record. An August 2018 private treatment record noted that the Veteran had complained of right knee pain for many years. It noted that he had undergone surgery in February 2014 and since that surgery had remained painful. He was diagnosed with a right knee failed total knee arthroplasty. The examiner noted that the Veteran had exhausted extensive efforts of conservative management and given the severity of his condition and debilitating pain, continued nonsurgical management would not result in significant or long-term pain relief. Significantly, despite undergoing surgery in February 2014, the evidence of record clearly reflects that the Veteran’s condition never improved and he underwent additional surgery on his right knee in September 2018. The Board finds the evidence supports a 60 percent rating for residuals of a right knee replacement, between April 1, 2015 and September 23, 2018. See 38 C.F.R. § 4.71, Diagnostic Code 5055. A 60 percent rating is the highest rating available under DC 5055. Thus, to the extent applicable, the considerations of DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), do not apply. See Johnston v. Brown, 10 Vet. App. 80 (1997). As to the rating and time period addressed above, the Board has also considered whether referral for extraschedular consideration is warranted but finds that it is not. In this regard, the Board finds that the symptoms of the Veteran’s right knee disability have not been so exceptional or unusual that the schedular criteria do not adequately compensate for them. Here, the Veteran’s main symptoms have been pain, decreased motion, and limitation of activities. The Board does not find that the Veteran’s symptoms take his case outside the norm such that referral for consideration of a higher evaluation on an extraschedular basis is required. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R. § 3.321(b)(1). Indeed, the rating schedule and associated regulations compensate for limited motion and other described symptoms. 4. Entitlement to a disability rating in excess of 60 percent, since October 24, 2019, for status post total right knee replacement. As noted above, the Veteran most recently underwent right knee surgery in September 2018. He was assigned a 100 percent rating following surgery for the period beginning September 24, 2018 and ending October 23, 2019. A 60 percent disability rating is now in effect as of October 24, 2019. A 60 percent rating is the maximum disability rating available under DC 5055 and is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. The assignment of separate ratings for manifestations of the knee, not contemplated by DC 5055, are precluded by the amputation rule. The amputation rule provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation of the extremity. 38 C.F.R. § 4.68. An amputation of the knee is rated at 60 percent under DC 5162 for an amputation of the leg at a place two thirds of the way between the knee joint and perineum. Because (1) the Veteran is currently rated at the maximum rating available under DC 5055; and (2) a rating higher than 60 percent is precluded by the amputation rule, the Veteran’s request for a higher rating is denied. Additionally, the 100 percent rating under DC 5055 is only warranted for the 1-year period following implantation of a prosthesis. TDIU 5. Entitlement to a TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). TDIU is granted where a Veteran’s service-connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. The Veteran currently has a combined disability rating of 90 percent, and meets the threshold schedular criteria for consideration of a TDIU. 38 C.F.R. § 4.16(a). Evidence of record reflects that the Veteran became too disabled to work in June 2017. See VA Form 21-8940. The evidence reflects that the Veteran suffers from service-connected status post total right knee replacement, right hip strain, left knee degenerative arthritis, tinnitus, right hip trochanteric pain syndrome with limitation of extension, left hip trochanteric pain syndrome with limitation of rotation, unspecified depressive disorder, left hip trochanteric pain syndrome with limitation of extension, right hip trochanteric pain syndrome with limitation of adduction, right hip trochanteric pain syndrome with limitation of flexion, left hip trochanteric pain syndrome with limitation of flexion, a scar of the right knee, and bilateral hearing loss. In light of the Veteran’s occupational background and functional limitations, and giving him the benefit of the doubt, the Board finds that the Veteran’s service-connected disabilities are sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level. Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.