Citation Nr: 21000527 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-18 354 DATE: January 5, 2021 ORDER A disability rating of 60 percent, but no higher, for left knee status post total arthroplasty, from December 1, 2015 to May 21, 2017, is granted. A disability rating of 60 percent, but no higher, for left knee status post total arthroplasty, from July 1, 2018 onwards is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, for the timeframe from December 1, 2015 to May 21, 2017, the preponderance of the evidence showed that the Veteran manifested chronic residuals consisting of severe painful motion or weakness in his left knee. 2. Resolving reasonable doubt in the Veteran’s favor, for the timeframe from July 1, 2018 onwards, the preponderance of the evidence showed that the Veteran has chronic residuals consisting of severe painful motion or weakness in his left knee. CONCLUSIONS OF LAW 1. From December 1, 2015 to May 21, 2017, the criteria are met for a 60 percent rating, but no higher, for residuals of left knee status post total arthroplasty. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2019). 2. From July 1, 2018 onwards, the criteria are met for a 60 percent rating, but no higher, for residuals of left knee status post total arthroplasty. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from May 1971 to February 1973. A Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ) in September 2019. The transcript of the proceeding is of record. The claim for a higher evaluation for left knee status post total arthroplasty. Under VA law, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. For purpose of evaluating all service-connected orthopedic disabilities, below, when a musculoskeletal disability is evaluated based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, particularly during times when these symptoms “flare up,” such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. 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.”). In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s condition status-post left knee arthroplasty is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055. Diagnostic Code 5055 for prosthetic replacement of knee joint assigns a 100 percent evaluation for one year following implantation of prosthesis. With chronic residuals consisting of severe painful motion or weakness in the affected extremity a 60 percent rating is assigned. With intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum rating is 30 percent. Diagnostic Code 5260 provides for a noncompensable (0 percent) rating when leg flexion is limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees; 20 percent for flexion limited to 30 degrees; and 30 percent for flexion limited to 15 degrees. Diagnostic Code 5261 provides for a noncompensable rating when leg extension is limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees; 20 percent for extension limited to 15 degrees; 30 percent for extension limited to 20 degrees; 40 percent for extension limited to 30 degrees; and 50 percent for extension is limited to 45 degrees. Normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. According to the procedural history the Veteran’s left knee disorder status post total arthroplasty was rated as follows: 100 percent effective from October 10, 2014; 30 percent from December 1, 2015; 100 percent from May 22, 2017; 30 percent from July 1, 2018; 60 percent from September 12, 2019. The rating time periods the Board is considering consists of those for which there was not 100 percent already in effect –– December 1, 2015 to May 21, 2017, and July 1, 2018 onwards. A 100 percent schedular rating as indicated, reflects the time period for total knee replacement and one-year convalescence subsequently. See 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2019). The first timeframe considered is whether a higher rating than 30 percent is warranted from December 1, 2015 to May 21, 2017. Per Diagnostic Code 5055, to obtain 60 percent, there would have to manifest chronic residuals consisting of severe painful motion or weakness in the affected extremity. Otherwise, anything higher than 30 percent necessitates application of the standard VA rating schedule. The August 2015 private orthopedist’s report noted range of motion of about 0 to 95 degrees preoperatively, but was now only able to flex the knee to 45 degrees. The joint was stable. Left knee arthroplasty implants were well fixed. Then in October 2015 at a VA Medical Center (VAMC), the range of motion was from 16 to 57 degrees. Quadriceps strength was 4/5, sensation was intact and the DP pulse was 2+. Gait was slow and antalgic on the left. The assessment was arthrofibrosis and left total knee arthroplasty. In his April 2017 VA Form 9 (Substantive Appeal to the Board), the Veteran stated that he remained in constant pain, with limited range of motion, and walked with the assistance of a cane and another person. Subsequently, the May 2017 left knee arthroplasty report stated that after the first total knee arthroplasty in 2014 he had done well, but lost his range of motion and developed a significant amount of pain. His range of motion became more and more severely limited and ultimately required irrigation and follow up. Although “limitation of motion” and “painful motion” are separate concepts, the Board is not precluded from considering limitation of motion in assessing painful motion under Diagnostic Code 5055. Tedesco v. Wilkie, 31 Vet. App. 360 (2019). Based on these findings, resolving reasonable doubt favorably on the material issue of severity of condition, per 38 C.F.R. § 4.3, the requirements for a 60 percent rating are considered met, since the objectively limited joint mobility evidence and the self-reported symptomatology likewise was enough to reasonably be considered “chronic” and more severe residuals. He described severe pain and needing assistance to walk. A 60 percent rating is granted for the period from December 1, 2015 to May 22, 2017. At the September 2019 Board hearing the Veteran explained, due to the ongoing left knee symptomatology he had difficulty with regular daily activities of life that required walking and bending, and experienced severe pain and weakness over the years notwithstanding various treatment measures. According to his statements there still remained a significant problem. His representative asked him if his disability worsened since 2017 and he replied in the affirmative. He also stated that he had constant, nagging pain and weakness in his left knee. His representative asked him if he experienced severe pain and weakness since 2017, and he replied in the affirmative. He did not undergo VA examinations during this period and his VA treatment records do not contradict his hearing testimony. There is no probative medical evidence in the claims file for the period from July 1, 2018 to September 11, 2019, to contradict the Veteran’s credible testimony. From July 1, 2018 to September 11, 2019, the condition was most closely approximated by chronic residuals consisting of severe painful motion or weakness and a 60 percent rating is warranted. The Veteran underwent a VA examination in October 2019, which indicated that the Veteran retained joint mobility from 0 to 75 degrees of motion, with some limit in ability to complete daily activities. He regularly used a cane. There was no joint instability or knee subluxation and instability on examination and the examiner stated that there was no history of recurrent subluxation or lateral instability. At his January 2020 VA examination, he stated that he had constant pain in his left knee, that he slept with a pillow between his legs, and he had leg cramps. He also stated that he walked with a limp. The examiner found that he did not have a history of lateral instability or subluxation, and his left knee joint was stable during testing. He constantly used a cane. At his November 2020 examination, the examiner found that he did not have a history of recurrent subluxation or lateral instability, and his joint was stable during testing. Outside of the periods where it was already in effect, a 100 percent rating is not warranted because it was within the one year following the implantation of his prosthesis. Under Diagnostic Code 5257, a 10 percent evaluation is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent evaluation is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2015). Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the criteria set forth in DeLuca do not apply. DeLuca, 8 Vet. App. at 206. A separate rating under Diagnostic 5257 for instability of the left knee joint after his knee replacement surgeries is not warranted. The VA examiners stated that the Veteran did not have a history of recurrent subluxation and lateral instability, and his left knee was also stable to testing. At his hearing, the Veteran did not describe having instability. For these reasons, the preponderance of the evidence weighs in favor of a partial increase in benefits. VA’s benefit-of-the-doubt doctrine applies to the extent indicated. 38 C.F.R. § 4.3. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jason Lyons, 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.