Citation Nr: 21000405 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-21 243 DATE: January 5, 2021 ORDER A rating in excess of 10 percent disabling for a right knee disability from June 5, 2009 to October 23, 2019, 100 percent disabling from October 23, 2019 to December 1, 2020 (a “temporary total”), and 30 percent disabling thereafter is denied. FINDINGS OF FACT 1. From June 5, 2009 to October 23, 2019, the Veteran’s right knee disability was not manifested by flexion limited to 30 degrees. 2. From October 23, 2019 to December 1, 2020, the Veteran was convalesced due to surgery for prosthetic replacement of the knee joint. 3. From December 1, 2020 to present, the Veteran’s right knee disability has not manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity. CONCLUSIONS OF LAW 1. From June 5, 2009 to October 23, 2019, the criteria for entitlement to a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a temporary 100 percent disability rating based on partial knee replacement of the service-connected left knee disability commencing October 23, 2019 through December 1, 2020 have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a Diagnostic Code 5055. 3. From December 1, 2020 to present, the criteria for entitlement to a rating in excess of 30 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5055-5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1981 to February 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. This matter was previously before the Board in January 2018 and January 2020, and was remanded for additional development, which has been completed. This was due to the changing nature of the knee problem over time (the surgery). This is the only issue on appeal. The Veteran contends that she is entitled to a higher rating because of her chronic knee pain. The Veteran was initially rated under DC 5260 for her right knee disability as 10 percent disabling from June 5, 2009 to October 23, 2019. On October 23, 2019, the Veteran underwent a right total knee arthroplasty and was assigned a 100 percent disability rating for the one year following prosthetic replacement of the knee joint. The Veteran is currently rated under DC 5055 as 30 percent disabling for a right knee replacement. Under Diagnostic Code 5260, a noncompensable 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. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5055 provides that for knee replacement (prosthesis), a 100 percent evaluation is assigned for one year following the implantation of the prosthesis. 38 C.F.R. § 4.71a. The Veteran is entitled to a 100 percent evaluation for the one-year period following right knee arthroplasty performed in October 2019. Thereafter, the Veteran is entitled to at least a 30 percent rating for the left knee as the minimum rating. A 60 percent evaluation is assigned for a prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a. Diagnostic Code 5055. Intermediate degrees of residual weakness, pain or limitation of motion, are to be rated by analogy to diagnostic codes 5256, 5261, or 5262. These diagnostic codes pertain to functional limitation of the knee. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. For VA purposes, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5256 pertains to ankylosis of the knee and provides a 40, 50 and 60 percent rating for varying degrees of ankylosis. However, the evidence does not show, and the Veteran does not contend, that she has had ankylosis of the right knee at any time during the pendency of the claim. Accordingly, a rating in excess of 30 percent is not warranted under this diagnostic code. Diagnostic Code 5262 provides a 40 percent evaluation for nonunion of the tibia and fibula with loose motion, requiring a brace. However, the evidence does not show, and the Veteran does not contend, that she has any impairment of the tibia and fibula. Thus, a rating in excess of 30 percent is not warranted under this diagnostic code. Finally, Diagnostic Code 5261, limitation of extension of the leg, provides a 40 percent rating for extension of the knee limited to 30 degrees. A 50 percent evaluation is provided for extension limited to 45 degrees. 38 C.F.R. § 4.71a. Also applicable in this case is Diagnostic Code 5257, other impairment of the knee, recurrent subluxation or lateral instability, which provides a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment of the knee. 38 C.F.R. § 4.71a. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s right knee disability prior to October 23, 2019. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and the inability to stand for long periods of time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran experienced severe flare-ups 2-3 times monthly would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. A June 2019 VA examiner found the Veteran’s right knee flexion to be 45 degrees and 0 degrees extension. The examiner found evidence of pain with weight bearing and noted no additional loss of function or range of motion after three repetitions. Pain, weakness, and lack of endurance were noted as factors that cause functional loss following repetitive use over time and with flare-ups. However, the examiner was unable to describe in terms of range of motion based on the Veteran’s subjective report of increased pain, weakness, and lack of endurance. No ankylosis was noted and there was no history of recurrent subluxation or lateral instability. The examiner noted objective evidence of pain on passive range of motion and non-weight bearing but did not provide measurements for range of motion. Because the evidence is negative for evidence the Veteran's flexion was limited to 30 degrees, a higher 20 percent rating is not warranted. From October 23, 2019 to December 1, 2020, the Veteran was in receipt of a 100 percent disability rating and no higher rating is available. 38 C.F.R. § 4.30. The Board also finds that the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran’s right knee disability from December 1, 2020 to the present. The record is negative for chronic residuals consisting of severe painful motion or weakness in the right knee. A March 2020 VA examiner found the Veteran’s right knee flexion to be 95 degrees and -10 degrees extension with no additional loss after repetitive use testing and with flare-ups. The examiner noted the range of motion was outside of “normal” range, but normal for the Veteran because of factors other than her right knee condition such as body habitus and exogenous obesity (which the Board can not use as the basis for a higher rating). There was no evidence of recurrent subluxation, lateral instability, pain on passive range of motion, or pain with non-weight bearing testing. For functional impairment, the examiner noted the Veteran is unable to participate in repetitive lifting, stopping, bending, and excessive walking until her completion of post-total knee replacement recovery. Because the evidence is negative for chronic residuals consisting of severe painful motion or weakness in the right knee, a higher 60 percent rating is not warranted. (Continued on the next page)   The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In conclusion, the Board finds that the preponderance of evidence is against a rating in excess of 10 percent for the Veteran’s right knee disability prior to October 23, 2019. The preponderance of the evidence is also against a rating in excess of 30 percent for the Veteran’s right knee disability from December 1, 2020 to the present. The above does not suggest that the Veteran does not have problems with this knee as a 30% disability rating will cause the Veteran many problems over time. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.