Citation Nr: 21001127 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-25 309A DATE: January 7, 2021 ORDER Entitlement to a rating in excess of 30 percent for status post total left knee arthroplasty prior to November 14, 2018; and in excess of 60 percent as of November 14, 2018, except for periods of temporary total rating, is denied. FINDING OF FACT 1. Prior to November 14, 2018, status post total left knee arthroplasty was productive of intermediate residual pain. 2. Effective November 14, 2018, status post total left knee arthroplasty was manifested by chronic residuals of a prosthetic replacement of the left knee joint consisting of severe painful motion or weakness in the affected knee. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for status post total left knee arthroplasty prior to November 14, 2018; and in excess of 60 percent as of November 14, 2018, except for periods of temporary total rating, have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1948 to May 1952 This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. In a July 2014 VA Form 9, Appeal to the Board of Veterans’ Appeals, the Veteran requested a videoconference hearing before the Board. However, in August 2016 correspondence, the Veteran withdrew the hearing request. Accordingly, the Board considers the request for a hearing to be withdrawn and will adjudicate the claim accordingly. 38 C.F.R. § 20.704 (d), (e). In April 2018 and March 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. During the course of this appeal, a November 2020 rating decision established service connection for right knee degenerative joint disease and assigned a 10 percent rating, effective January 18, 2011.  Therefore, the of entitlement to service connection for a right knee disability, previously the subject of the appeal, has been resolved in the Veteran’s favor, and there is no longer a case in controversy for appellate consideration as to that claim. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to a rating in excess of 30 percent for status post total left knee arthroplasty prior to November 14, 2018; and in excess of 60 percent as of November 14, 2018, except for periods of temporary total rating. Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 these elements. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994). The rating of the same disability under different diagnostic codes, known as pyramiding, must be avoided. However, 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Diagnostic Code 5010 provides that arthritis, due to trauma, substantiated by X ray findings be rated as arthritis degenerative. Under Diagnostic Code 5055, a 30 percent rating is the minimum rating assignable for prosthetic replacement of the knee joint. A 60 percent rating is warranted for a with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 100 percent rating is warranted for the one year following implantation of the prosthesis. Intermediate degrees of residual weakness, pain, or limitation of motion are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5256, a 40 percent rating is warranted for ankylosis in flexion between 10 depress and 20 degrees. A 50 percent rating is warranted for ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is warranted for extremity unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Under Diagnostic Code 5261, knee extension limited to 5 degrees warrants a 0 percent rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Pursuant to Diagnostic Code 5262, a 30 percent rating is warranted when there is malunion of the tibia and fibula, with marked knee or ankle disability. A schedular maximum 40 percent rating is warranted when there is nonunion of the tibia and fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Amputation of a leg from the middle or lower third of the thigh or lower warrants a rating of 60 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. The Veteran filed an increased rating claim on January 8, 2011. Excluding the periods of the temporary 100 percent rating following left knee surgery, the Veteran is currently assigned a 30 percent rating for status post total left knee arthroplasty under Diagnostic Code 5055 prior to November 14, 2018, and a 60 percent rating, effective November 14, 2018. As an initial matter, the Board notes that, in a previous April 2018 Remand, the Board found a July 2011 VA knee examination to be inadequate for rating purposes. Thus, the July 2011 VA examination will not be considered in adjudication of this claim. The Board finds May 2011 and November 2018 VA knee examinations are inadequate for rating purposes as, in both cases, the examiner did not provide an opinion as to functional loss during flare-ups, to include as expressed in terms of degrees of additional range of motion loss during flare-ups, and did not explain the reason for that omission. An opinion is speculative when it is based on the absence of procurable information or an examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion. Case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, May 2011 and November 2018 VA examinations will also not be considered in adjudication of this claim. The Veteran had a total left knee arthroplasty in July 2001. In a September 2010 primary care note, the Veteran’s left total knee replacement was described as functioning well and the Veteran was noted as swimming daily to exercise the knees. The Veteran’s extremities were noted as having full range of motion without cyanosis, clubbing, or edema. The Veteran’s gait was normal. The Veteran reported experiencing 5 out of 10 chronic pain, that was tolerable. The Veteran was described as doing satisfactorily. In a September 2010 medical note, the Veteran was seen in orthopedic consultation regarding the left knee. The Veteran presented without a complaint of knee pain and was noted as doing quite well. The Veteran did not complain of mediolateral knee pain or instability. On physical examination, the Veteran had stable range of motion throughout, with appropriate flexion from 0 to 125 degrees, and appropriate strength. Radiographs of the knee showed well-fixed, well-placed total knee arthroplasty with slight varus that was less than 3 degrees, with no evidence of radiolucency. In an August 2014 primary care nursing note the Veteran reported experiencing constant, chronic knee pain with no alleviating or aggravating factors. In a March 2015 psychiatry outpatient note, the Veteran was noted as ambulating slowly but without difficulty; and sat and stood without apparent muscle weakness. In an August 2015 primary care nursing note the Veteran again reported experiencing constant, chronic knee pain that was alleviated with pain medication and aggravated by his activities of daily living. In a June 2016 progress note the Veteran’s left knee condition was found to result in range of motion from 0 to 110 degrees. The Veteran was noted as having mild soft tissue swelling with noted effusion in his left knee. The knee was stable to varus and valgus stressing, with function strength. The Veteran complained of instability and pain with weightbearing. The Board notes that the Veteran was assigned a 100 percent rating from June 2016 to September 2017 as a result of a left total knee arthroplasty revision surgery, which occurred on June 28, 2016. In a June 2018 primary care note, the Veteran was noted as experiencing bilateral knee pain, but no muscle weakness or edema. An August 2019 social work triage note describes the Veteran as being in need of a left knee brace with custom hinges that locked to keep the knee from giving out. The Veteran was last provided VA examination in November 2020. However, most assessments, including left knee range of motion testing, were deemed medically inappropriate and not performed because the Veteran was bed bound as a result of a stroke in 2019 and needed total care. The Veteran was transported to the VA examination appointment by stretcher. The Veteran was also unable to voice a severity of pain. In support of the claim, the Veteran has also submitted several written statements detailing the effects of the left knee disability on his life. The Board has reviewed the Veteran’s medical records and finds that, prior to November 14, 2018, the Veteran’s symptomatology most closely approximates a 30 percent disability rating under Diagnostic Code 5055. Under Diagnostic Code 5055, a knee disability may be considered by analogy under Diagnostic Codes 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of tibia and fibula). Prior to November 14, 2018, excluding the period of temporary total rating, the medical records are negative for any evidence to support ankylosis, impairment of the tibia and fibula, or compensable limitation of extension. The record also does not demonstrate chronic residuals consisting of severe painful motion or any weakness in the left knee. Therefore, increased ratings are not available under the applicable Diagnostic Codes. Effective November 14, 2018, the Veteran is assigned a 60 percent disability rating for status post total left knee arthroplasty pursuant to Diagnostic Code 5055. The Board notes that a 60 percent rating is the maximum schedular rating assignable under Diagnostic Code 5055, after the one year following replacement, which has expired. The Board also notes that the 60 percent rating is the equivalent of an amputation rating for the left knee, so no higher rating can be assigned. Accordingly, the Board finds that, throughout the period of appeal, the preponderance of the evidence is against the assignment of any higher or additional separate rating for the left knee disability. Therefore, the claim for an increased rating must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.