Citation Nr: 20049935 Decision Date: 07/27/20 Archive Date: 07/27/20 DOCKET NO. 15-10 904 DATE: July 27, 2020 ORDER Entitlement to an initial rating in excess of 10 percent prior to December 16, 2011 for right knee degenerative joint disease status post partial knee arthroplasty (right knee disability) is denied. Entitlement to a rating of 60 percent, but no higher, from February 1, 2013 for right knee disability is granted. FINDINGS OF FACT 1. Prior to December 16, 2011, the Veteran’s right knee disability was not productive of actual or functional flexion limited to 30 degrees, actual or functional extension limited to 5 degrees, even with consideration of additional functional loss due to pain; ankylosis, impairment of the tibia and fibula, or genu recurvatum have not been demonstrated. 2. For the period from February 1, 2013, the Veteran’s right knee disability most nearly approximated chronic residuals consisting of severe painful motion or weakness. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee disability prior to December 16, 2011 have not been met. 38 U.S.C.§§ 1155, 5107 (b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5260. 2. The criteria for a rating in excess of 60 percent, but no higher, for residuals of a partial right knee replacement from February 1, 2013 are met. 38 U.S.C.§§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5055, 5256, 5261, 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps (USMC) from July 1985 to December 1996. The matter is before the Board of Veterans Appeals (Board) from a May 2012 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, a Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. The Board remanded the matter in August 2018 to afford the Veteran a VA examination and assess the current level of severity of his right knee replacement. The Veteran’s right knee disability is rated as 10 percent prior to December 16, 2011 and 30 percent disabling from February 1, 2013 under Diagnostic Code 5055. As his partial knee replacement was rated at 100 percent between December 2011 and January 2013, the Board will assess whether higher disability ratings are warranted for all other times. The Board notes that prior to the award of a temporary total rating, the Veteran’s right knee was rated pursuant to Diagnostic Codes 5260-5003. Thus, the Board will apply these Diagnostic Codes for the period prior to December 16, 2011. Diagnostic Code 5055 lists the diagnostic criteria specifically applicable to knee replacement (prosthesis). Under Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. (The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30). Thereafter, the minimum rating of 30 percent is warranted for a knee replacement with intermittent degrees of residual weakness, pain, or limitation of motion, to be rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. A 60 percent rating is assignable for a knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected knee disorders. Under 38 C.F.R. § § 4.71a , Diagnostic Code 5256, ankylosis of the knee with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, is rated at 30 percent; ankylosis in flexion between 10 and 20 degrees is rated at 40 percent; ankylosis in flexion between 20 and 45 degrees is rated at 50 percent; and extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated at 60 percent. Under 38 C.F.R. § § 4.71a, Diagnostic Code 5257, recurrent subluxation or lateral instability is rated at 10 percent for slight instability, 20 percent for moderate instability, and 30 percent for severe instability. In this case, the Veteran is in receipt of a separate 20 percent rating for instability of each knee, which will be discussed in more detail below. Under 38 C.F.R. § § 4.71a, Diagnostic Code 5258, dislocation of semilunar cartilage with frequent episodes of “locking” pain and effusion into the joint is rated at 20 percent. Under 38 C.F.R. § § 4.71a, Diagnostic Code 5259, symptomatic removal of semilunar cartilage is rated at 10 percent. Under 38 C.F.R. § § 4.71a, Diagnostic Code 5260, flexion of the leg is rated noncompensable when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. In order to warrant a separate rating under DC 5260, the evidence must approximate the functional equivalent of flexion of the leg limited to 45 degrees or less. Under 38 C.F.R. § § 4.71a, Diagnostic Code 5261, extension of the leg is rated noncompensable when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. For VA compensation purposes, normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § § 4.71a, Diagnostic Code 5262, malunion of the tibia and fibula is rated at 10 percent with slight disability, 20 percent with moderate disability, and 30 percent with marked disability. Nonunion of the tibia and fibula, with loose motion and requiring a brace, is rated at 40 percent. Under 38 C.F.R. § § 4.71a, Diagnostic Code 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing is rated at 10 percent. The Board notes that the criteria under Diagnostic Codes 5257, 5260, and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Ratings can also be assigned for impairment of the tibia or fibula and genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). 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). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 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 Vet. App. 32, 43 (2011). In Tedesco v. Wilkie, 31 Vet. App. 360 (2019), the Court held that “severe painful motion” in the criteria for a 60 percent rating under Diagnostic Codes 5055 is not synonymous with “limitation of motion,” although limitation of motion may be considered when evaluating painful motion. Period prior to December 16, 2011 The Veteran seeks an initial rating in excess of 10 percent, pursuant to Diagnostic Codes 5260-5003, for the period prior to December 16, 2011. The Veteran sought treatment with a private orthopedic surgeon, Dr. J.G. Generally, his right knee symptoms included joint effusion, significant tenderness to palpation, effusion, chronic pain, and limitation of motion. The Veteran complained of pain in the anterior aspect and increasing discomfort with kneeling of the right knee in April 2011. In September 2011, the Veteran reported using the treadmill, elliptical, and lifting weights as part of his cardiovascular training. He stated that his knee gave way and had persistent swelling despite regular icing and taking anti-inflammatory medication. Dr. J.G. noted chronic pain and swelling had lasted for at least four to five months, without specific injury, in a September 2011 consult and ordered imaging. An x-ray revealed osteoarthritis of the bilateral knees, with right greater than left; right knee joint effusion; and no acute osseous pathology. An MRI was also conducted, demonstrating a partial lateral meniscus tear and chondromalacia of the knee. The Veteran underwent a right knee arthroscopy in October 2011 with Dr J.G. Post-operatively, the Veteran continuously displayed full extension. Flexion ranged from 95 degrees, with no pain noted at 95 degrees, to 125 degrees. In November 2011, the Veteran expressed frustration that he could not stand or walk for any length of time without significant discomfort, and the chronicity of his pain level. Based on the above, the Board finds that an initial rating in excess of 10 percent prior to December 16, 2011 is not warranted. The Veteran’s 10 percent rating under Diagnostic Codes 5260-5003 is for painful noncompensable limitation of motion and x-ray evidence of arthritis. See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. § 4.71a, Diagnostic Code 5003; 38 C.F.R. § 4.59, Diagnostic Code 5260. Alternative or higher ratings are available for ankylosis, dislocation or removal of the semilunar cartilage, moderate or severe recurrent subluxation or lateral instability, flexion limited to 30 degrees or less, extension limited to a compensable level, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. The Board finds no lay or medical evidence in the record of such manifestations. Neither the Veteran’s treating physicians nor the VA examiner have found any evidence of ankylosis, moderate or severe recurrent subluxation or lateral instability, limitation of flexion to 30 degrees, limitation of extension to 10 degrees, dislocation of the semilunar cartilage, malunion or nonunion of the tibia and fibula, or genu recurvatum. There is evidence of limitation of right knee flexion, but not to less than 60 degrees. As to functional equivalence, the Board notes that there is evidence of pain of the right knee; however, the Board finds that these manifestations taken together are not the functional equivalent of a 20 percent rating under the rating criteria, as such symptoms can be accurately described as the painful motion warranting a 10 percent right for the right knee. See 38 C.F.R. § § 4.59. Stated differently, neither the objective nor subjective evidence suggests that there is the functional equivalent of limitation of flexion to 30 degrees or limitation of extension to 10 degrees. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial increased rating in excess of 10 percent for right knee disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5003. Accordingly, the claim must be denied. Period from February 1, 2013 The Veteran seeks a rating in excess of 30 percent, pursuant to Diagnostic Code 5055, for the period from February 1, 2013. VA and private treatment notes reveal complaints of and treatment for right knee disability. The Veteran primarily complained of lateral right knee pain. Treatment included physical therapy and taking pain medication. During the appeal period, his right knee demonstrated good to full muscle strength, no effusions, objective evidence of stability, and tender to normal touch sensation. The Veteran was afforded a VA examination in July 2013. The Veteran reported pain with activity and weather changes; swelling with activity; and needing to alter his biking due to pain since surgery. He confirmed occasional use of a brace for activity, and had no trauma injury, falls, or instabilities in the last year. Upon range of motion testing, full extension, with no objective evidence of painful motion, and flexion to 125 degrees, with painful motion beginning at 120 degrees, was demonstrated. Repetitive use testing revealed the same range of motion measurements and no additional limitations. Functionally, the Veteran’s right knee demonstrated less movement than normal and pain on movement after repetitive use testing. The Veteran described flare-ups occurred after standing, walking, or biking, causing increased swelling, pain and stiffness. The Veteran treated flare-ups with medication and ice, daily. The examiner estimated an additional loss between 10 to 15 degrees of overall range of motion, strength, coordination, and fatigue due to flare-ups. The examiner observed tenderness or pain to palpation of the right knee. Muscle strength testing revealed normal strength for flexion and extension maneuvers. Joint stability tests were normal. The examiner found no history of recurrent patellar subluxation/dislocation, a meniscal condition, or any other additional knee conditions. The examiner confirmed the Veteran’s total knee joint replacement in December 2011, noting intermediate degrees of residual weakness, pain or limitation of motion, as a result. A nonpainful and stable scar, less than 6 inches was noted. The Veteran was in a motor vehicle accident in October 2014. He sought treatment with Dr. J.G. Following the accident, the Veteran reported right knee pain and stiffness, with symptoms alleviated by ice. Dr. J.G. found no joint effusion, full extension, flexion measuring to 120 degrees, soreness on palpation, and stability. A December 2014 private treatment record revealed full range of motion. The Veteran slipped and fell onto his right side in October 2015. He reported to his private primary care center that prior to this fall, he had been able to resume weight training with lighter weights and higher repetitions, which he could not previously do because of right knee pain. After an x-ray was conducted, the Veteran was diagnosed with right knee IT band syndrome exacerbation of underlying arthrosis. Private physical therapy records reveal complaints of worsening right knee pain with kneeling, squatting, walking, and prolonged sitting; and stiffness and achiness in November 2015. The Veteran also reported the right knee did not feel supported when he walked down the stairs, and that it felt as if it were going to give out. Active range of motion flexion measured to 95 degrees, with passive range of motion flexion measuring to 100 degrees. Strength on flexion was 4+ out of 5, with full strength on extension. The Veteran complained of giving way in December 2015 to Dr. J.G; and that his right knee had given out a few times when going up the stairs to his private physical therapist. The Veteran also reported clicking and popping in his right knee with pain to the private physical therapist. The physical therapist noted that KT taping the right knee helped alleviate the pain. In January 2016, he was diagnosed with tear of medial cartilage or meniscus of right knee by Dr. J.G. The Veteran’s most recent VA examination of the right knee was afforded in October 2019. The Veteran complained of daily significant pain and swelling starting in the morning, after weather changes, standing or walking for prolonged periods of time, and described the pain as stiffness and throbbing. He utilized icing and elevating the right knee when swelling worsened. The Veteran confirmed that sometimes the right knee felt as if it were going to catch and that it sometimes popped. Importantly, the Veteran reported that he avoided bending his right knee as it hurt to straighten. He endorsed regular use of a knee brace for the pain, especially when working as his job required him to walk on uneven ground. The examiner opined that the Veteran’s right knee disability did not cause any functional impact on employment as the Veteran reported he tolerated the pain and did not skip work due to his right knee disability. Upon range of motion testing, the right knee had full extension and flexion to 100 degrees. The abnormal range of motion, itself, contributed to functional loss because of limited motion due to pain. Pain was noted on flexion and extension maneuvers. Moderate pain was also demonstrated with weightbearing, non-weightbearing, and passive ranges of motion. The Veteran was capable of repetitive use testing with no additional functional loss or range of motion. Pain significantly limited functional ability with repeated use over a period of time, demonstrated with full extension and flexion to 95 degrees. Flare-ups manifested with activities requiring lifting, carrying, bending, twisting, walking on uneven ground (causing the knee to manifest as a dull ache), increasing in severity on a daily basis. The examiner noted that the examination was not conducted during a flare-up. However, the examiner confirmed that pain significantly limited functional loss of flexion measuring to 90 degrees and extension to 5 degrees. Moderate pain on the peripatellar structures, medially, was observed. There was no objective evidence of crepitus, ankylosis, joint instability, meniscal issues, or other right knee conditions. Full muscle strength was exhibited. The Veteran had a scar on his right due to his surgery – it measured from 17 centimeters to .5 centimeters, was not painful, and was stable. Based on his most recent x-rays, ordered by a private provider, his knee was in good shape. Based on a review of the evidence and in a light most favorable to the Veteran, the Board finds that a 60 percent rating, but no higher, is warranted during the entire period on appeal (from December 2011 to the present) for the Veteran’s right knee disability, notwithstanding the times he was in receipt of the temporary total 100 percent evaluation. The Veteran’s partial right knee replacement occurred in December 2011. Because Diagnostic Code 5055 in VA’s rating schedule pertains specifically to evaluations of knee replacement disabilities, the Veteran’s disability will not be rated by analogy to any of the other diagnostic codes. See Copeland v. McDonald, 27 Vet. App. 333, at 337 (2015). The Board finds that from February 1, 2013, the Veteran’s right knee disability most nearly approximates as chronic residuals. The Veteran reported pain, limitation of motion, popping and cracking of the joints, swelling and feeling as if the knee was going to way. He reported wearing a knee brace regularly, and unable to stand or walk for prolonged periods of time, squat, or straighten his leg due to the right knee pain. The severity and frequency of the symptoms related to the residuals of his partial knee replacement was described as chronic right lateral pain. The Veteran lost range of motion and functional ability after repetitive use testing and during flare-ups, again, because of his chronic pain. He reported experiencing flare-ups daily, upon waking and with any weather changes. Despite taking medication, undergoing physical therapy, and utilizing a knee brace, the Veteran found no relief for his chronic pain. As such, the right knee disability symptoms more equate to severe painful motion or weakness, consistent with a 60 percent rating. The next question before the Board is whether a separate rating is warranted for the Veteran’s right knee disability, using any other diagnostic codes pertaining to the knee. Given that the Veteran was in receipt of a 100 percent rating for his knee from December 2011 to January 2013, the Board will narrow down its analysis as to whether separate ratings for the Veteran’s right knee disability is warranted as of February 2013, the date the residuals of a partial right knee replacement under Diagnostic Code 5055 was assigned. Other diagnostic codes pertaining to the knee, are inapplicable as of February 2013. The Veteran has not been found to suffer from genu recurvatum (Diagnostic Code 5263). Moreover, as a meniscal condition was not found, a separate rating under Diagnostic Code 5258 (dislocated semilunar cartilage) or Diagnostic Code 5259 (removal of semilunar cartilage) is not warranted. Similarly, a separate rating for arthritis under Diagnostic Code 5003 is not appropriate because the Veteran’s right knee was replaced in December 2011 and residuals of the knee replacement pertain to limitation of motion and severe painful motion. See Diagnostic Code 5055. The criteria for Diagnostic Code 5055 and the limitation of motion codes referred above are mutually exclusive and provide the requisite compensation for painful motion that is also contemplated under Diagnostic Code 5003. The Veteran has been in receipt of a rating under Diagnostic Code 5055 since February 2013. As such, a separate rating under Diagnostic Code 5003 is barred from being awarded. The Board finds that under this Veteran’s specific circumstances, any reports of instability or giving way in the right knee joint is part of the basis for the grant of a 60 percent rating under Diagnostic Code 5055. Lastly, the Board notes that the Veteran is separately rated for his scar of the right knee. He is rated as noncompensable and this rating is warranted the evidence does not show a scar that is at least six square inches, unstable, or painful. Given the foregoing, the Board finds that a 60 percent rating, but no higher, is warranted for the right knee disability beginning February 1, 2013. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.