Citation Nr: 21002080 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-38 496 DATE: January 12, 2021 ORDER Entitlement to an increased disability rating in excess of 10 percent prior to January 24, 2020, for the service-connected partial right knee replacement is denied. Entitlement to an increased disability rating in excess of 20 percent since January 24, 2020, for the service-connected partial right knee replacement is denied. REMANDED Entitlement to an increased disability rating in excess of 20 percent for the service-connected painful scar, status post repair of left varicocele with high inguinal ligation of the left spermatic vein is remanded. Entitlement to an earlier effective date, prior to August 14, 2017, for the 20 percent disability rating for the service-connected neuropathy of the left lower extremity, femoral nerve is remanded. Entitlement to an initial compensable disability rating for the service-connected linear scar status post left varicocele repair is remanded. Entitlement to an increased disability rating in excess of 20 percent for the service-connected neuropathy of the left lower extremity, femoral nerve is remanded. FINDINGS OF FACT 1. Prior to January 24, 2020, the Veteran’s service-connected partial right knee replacement was manifested by no worse than flexion to 125 degrees and extension to zero degrees with tenderness, swelling and pain; there was no evidence of recurrent subluxation, lateral instability, or dislocated semilunar cartilage. 2. Since January 24, 2020, the Veteran’s service-connected partial right knee replacement was manifested by no worse than flexion to 30 degrees and extension to zero degrees with tenderness, pain, swelling, weakness and fatigue; there was no evidence of recurrent subluxation, lateral instability, or dislocated semilunar cartilage. CONCLUSIONS OF LAW 1. Prior to January 24, 2020, the criteria for an increased disability rating in excess of 10 percent for the service-connected partial right knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5257, 5258, 5260, 5261. 2. Since January 24, 2020, the criteria for an increased disability rating in excess of 20 percent for the service-connected partial right knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5257, 5258, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. These matters were previously remanded by the Board in December 2019. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found—a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 127 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Service connection was originally granted for the partial right knee replacement in a March 2017 rating decision, which assigned a 10 percent rating, effective from February 3, 2017. Thereafter, in April 2017, the Veteran filed a claim for a temporary 100 percent rating based on surgical or other treatment necessitating convalescence for the right knee. Pursuant to a June 2017 rating decision, a temporary 100 percent rating was assigned based on surgical or other treatment necessitating convalescence for the right knee, effective from February 3, 2017, and a 10 percent rating was assigned, effective from May 1, 2017. In September 2017, the Veteran filed a claim for an increased rating. Per the December 2017 rating decision, which is the subject of this appeal, the RO continued the 10 percent rating for the right knee. Thereafter, a May 2020 rating decision assigned a 20 percent evaluation, effective from January 24, 2020 pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. For example, regarding the diagnostic codes for the partial right knee replacement, the first four digits, 5010, represent the diagnostic used to rate traumatic arthritis. The second four digits after the hyphen, 5260, represent the diagnostic code for limitation of flexion of the leg. Regarding Diagnostic Code 5010 for traumatic arthritis and its combinations with codes 5260 and 5261, Diagnostic Code 5010 requires that it be substantiated by x-ray findings and further directs that it be rated under Diagnostic Code 5003 as degenerative arthritis, substantiated by x-ray findings rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion from degenerative arthritis. A 20 percent evaluation is warranted for x-ray evidence of involvement of two or more major or minor joints, with occasional incapacitating exacerbations. 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. Limitation of motion of knee joints is rated under Diagnostic Code 5260 for flexion, and Diagnostic Code 5261 for extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Under Diagnostic Code 5260, flexion that is limited to 60 degrees warrants a 0 percent rating; flexion that is limited to 45 degrees warrants a 10 percent rating; flexion that is limited to 30 degrees warrants a 20 percent rating; and flexion that is limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, extension that is limited to 5 degrees warrants a 0 percent rating; extension that is limited to 10 degrees warrants a 10 percent rating; and extension that is limited to 15 degrees warrants a 20 percent rating; extension that is limited to 20 degrees warrants a 30 percent rating; extension that is limited to 30 degrees warrants a 40 percent rating; and extension that is limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee warrants a 10 percent rating when it is slight, a 20 percent rating when it is moderate, and a 30 percent rating when it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint warrants a maximum 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage warrants a maximum rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5259. 1. Entitlement to an increased disability rating in excess of 10 percent for the service-connected partial right knee replacement prior to January 24, 2020 is denied. The Veteran essentially contends that his service-connected partial right knee replacement is worse than currently rated. The Veteran underwent VA knee examination in March 2017 and reported that his condition began with inflammation around the knee, weakness, a lot of soreness and tingling and that the condition has worsened. He reported no flare-ups of the right knee but reported functional loss, described as damage to the femoral nerve. Range of motion testing revealed flexion to 130 degrees and extension to zero. The examiner reported that the abnormal range of motion itself did not contribute to a functional loss. Evidence of pain with weight-bearing upon flexion was noted; however, the examiner reported such did not result in and/or cause functional loss. The examiner also noted evidence of pain on passive range of motion testing of the right knee. The examiner reported objective evidence of tenderness but observed no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss of function or range of motion. The examiner reported that the Veteran was not being examined immediately after repetitive use over time but that the examination was consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner further reported that pain significantly limited functional ability with repeated use over time but was unable to describe such in terms of range of motion loss because that would depend on the type of activity being performed and severity of pain experienced by the Veteran. There were no additional factors contributing to the disability reported. Muscle strength was normal and there was no muscle atrophy. The examiner reported no ankylosis, recurrent subluxation, history of lateral instability, history of recurrent effusion, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, any other tibial or fibular impairment, or a meniscus (semilunar cartilage) condition. Joint stability testing performed did not reveal joint instability. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran’s right knee. The examiner noted the Veteran had undergone a partial knee replacement in January 2017. A scar, which was not reported as painful or unstable, was noted on the right knee which measure 15 centimeters by 0.2 centimeters. The examiner reported the Veteran did not use any assistive devices. The examiner noted diagnostic test results of the right knee revealed a partial knee prosthesis seen at the medial compartment with slight old cortical fracture deformity proximal shaft of the fibula, linear lucencies seen at the proximal shaft of the tibia possibly from prior surgery and small knee joint effusion, but otherwise no other radiographic findings involving the right knee. The examiner determined that the Veteran’s right knee impacted his ability to perform any type of occupational task, described as no prolonged standing and walking. The examiner diagnosed partial right knee replacement since 2017. Upon VA knee examination in October 2017 for a left knee/leg disability, the Veteran reported flare-ups of the right knee, described as inflammation and soreness, requiring him to elevate his knee and functional loss/impairment, described as limited mobility and no active sports since before surgery. Range of motion testing of the right knee revealed flexion to 125 degrees and extension to zero. Abnormal range of motion itself did not contribute to a functional loss. Pain which causes functional loss was noted on examination on flexion. There was no evidence of pain on weight-bearing or nonweight-bearing, but the examiner did note pain on passive range of motion testing of the right knee. The examiner reported no evidence of localized tenderness, pain on palpation or crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss of function or range of motion. The examiner reported that the Veteran was not being examined immediately after repetitive use over time or during a flare-up, but that the examination was consistent with the Veteran’s statements describing functional loss with repetitive use over time and during a flare-up. The examiner further reported that pain significantly limited functional ability with repeated use over time and with flare-ups but was unable to describe such in terms of range of motion loss because that would depend on the type of activity being performed and severity of pain experienced by the Veteran. There were no additional factors contributing to the disability reported. Muscle strength was normal and there was no muscle atrophy. The examiner reported no ankylosis, history of recurrent subluxation, lateral instability and recurrent effusion. There was no evidence of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, any other tibial or fibular impairment, or a meniscus (semilunar cartilage) condition. Joint stability testing performed did not reveal joint instability. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran’s right knee. The examiner noted the Veteran had undergone a partial knee replacement in January 2017. No scars were observed. The examiner reported the Veteran did not use any assistive devices. The examiner remarked that there are findings for the right knee; however, the examination was focused for the left knee and therefore, no diagnosis was warranted for the right knee. Private treatment records dated March 2017, show the Veteran sustained a right knee injury and his symptoms included pain and abrasion, described by the Veteran as moderate in severity. Inspection and palpation revealed normal right knee alignment, scar(s) (normal postoperative appearance except for small bleeding abrasion), tenderness (slight tenderness to palpation patella), mild swelling, full neurovascular status and patella mobility, no atrophy, no crepitus, no cutaneous lesions, no deformity, no effusion, no instability, no laxity, no popliteal fullness, no rash, no tenderness to palpation along lateral joint line, no tenderness to palpation along medial joint line, no DVT symptomatology. Range of motion testing revealed right full range of motion, active extension (0 degrees) and active flexion (130 degrees). Functional testing revealed right varies stressing is negative. The clinician noted the quad mechanism intact. Knee neurovascular sensation intact to light touch. X-rays of an existing unicompartmental knee arthroplasty revealed no fracture or dislocation. There are findings consistent with normal post-operative changes. The implants are well-aligned and appropriately placed. There are no signs of hardware failure, loosening, or excessive osteolysis and wear. The assessment was status-post partial right knee replacement and contusion of right knee. Per a June 2017, four month post-op follow-up, the Veteran complained of moderate right knee pain with increased pain and swelling after mowing the yard which has improved over the last several days. He denied any locking or mechanical symptoms or buckling or giving way. Physical examination, to include range of motion testing was the same as in March 2017. The assessment was status-post partial right knee replacement. In an October 2017 follow-up, he complained of mild post-operative pain. Physical examination, to include range of motion testing was the same as in March 2017. Upon review of the evidence, the Board finds that the criteria for a rating in excess of 10 percent prior to January 24, 2020 based on limitation of motion have not been met. In this regard, at worst, the Veteran had right knee flexion to 125 degrees and extension was always to zero. Such findings do not support the criteria for an increased rating under Diagnostic Codes 5260 or 5261. 38 C.F.R. § 4.71a. Thus, the 10 percent rating assigned was based on painful motion. 2. Entitlement to an increased disability rating in excess of 20 percent for the service-connected partial right knee replacement since January 24, 2020 is denied. Upon VA knee examination in January 2020, the Veteran reported his walking gait has put a strain on all of his motor joints, weakness, swelling, extreme pain, soreness and difficulty walking. He also reported daily flare-ups, which are so severe that he can no longer walk, requiring him to sit or elevate his right knee until the swelling goes down. He stated that flare-ups are precipitated by prolonged walking or not having his knee elevated. Range of motion testing revealed flexion to 90 degrees and extension to zero. The examiner reported that the abnormal range of motion contributed to a functional loss. Evidence of pain with weight-bearing upon flexion and extension was noted and the examiner reported such causes functional loss. The examiner also noted evidence of pain on passive range of motion testing of the right knee and pain on nonweight-bearing. The examiner reported objective evidence of tenderness/pain on palpation and noted the location is diffuse, severity is moderate with a direct relationship to the condition. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss of function or range of motion. The examiner reported that the Veteran was not being examined immediately after repetitive use over time but that the examination was consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner further reported that pain and fatigue significantly limited functional ability with repeated use over time and described in terms of range of motion as flexion to 60 degrees and extension to zero. The examiner reported that the Veteran was not during a flare-up but that the examination was consistent with the Veteran’s statements describing functional loss during a flare-up. The examiner further reported that pain, fatigue and weakness significantly limited functional ability with flare-ups and described in terms of range of motion as flexion to 30 degrees and extension to zero. There were no additional factors contributing to the disability reported. Muscle strength was normal and there was no muscle atrophy. The examiner reported no ankylosis, history of recurrent subluxation, history of lateral instability, history of recurrent effusion. There was also no recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, any other tibial or fibular impairment, or a meniscus (semilunar cartilage) condition. Joint stability testing performed did not reveal joint instability. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran’s right knee. The examiner noted the Veteran had undergone a partial knee replacement in January 2017. No scars were observed. The examiner reported the Veteran did not use any assistive devices. The examiner determined that the Veteran’s right knee impacted his ability to work, described as no standing for more than 20 to 30 minutes, no sitting for more than one hour and no walking for more than a half mile. The examiner diagnosed partial right knee replacement since 2017 and remarked that there is no change in the diagnosis. Upon review of the evidence, the Board finds that the criteria for a right knee rating in excess of 20 percent based on limitation of motion have not been met. In this regard, at worst, the Veteran had right knee flexion to 30 degrees, which is double what is required for the next higher 30 percent rating based on limitation of flexion. Further, extension was always to zero. Such findings do not support the criteria for an increased rating under Diagnostic Codes 5260 or 5261. 38 C.F.R. § 4.71a. As a final matter, the Board has also considered whether the Veteran is entitled to higher or separate ratings under Diagnostic Code 5257 for recurrent subluxation or lateral instability. However, the most probative evidence of record consistently indicated that the Veteran did not have recurrent subluxation or lateral instability. Similarly, with respect to Diagnostic Code 5258, the evidence does not establish that the Veteran has dislocated semilunar cartilage. Thus, higher or separate ratings under Diagnostic Codes 5257 and 5258 are not warranted during the entire appellate period. 3. Conclusion In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against ratings in excess of those assigned, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). REASONS FOR REMAND 1. Entitlement to an initial compensable disability rating for the service-connected linear scar status post left varicocele repair is remanded. 2. Entitlement to an increased disability rating in excess of 20 percent for the service-connected painful scar, status post repair of left varicocele with high inguinal ligation of the left spermatic vein is remanded. 3. Entitlement to an increased disability rating in excess of 20 percent for the service-connected neuropathy of the left lower extremity, femoral nerve is remanded. 4. Entitlement to an earlier effective date, prior to August 14, 2017, for the 20 percent disability rating for the service-connected neuropathy of the left lower extremity, femoral nerve is remanded. Per the December 2019 Board remand, the Board noted that the Veteran claimed that his disability for which his service-connected scars and neuropathy are associated with is actually a broader claim and he is entitled to a higher disability rating based on his additional residuals. Further, the Board noted that he requested remand for an additional VA examination that fully examines his testicles and his potential urinary frequency issues he is experiencing. At that time, the Board concluded that remand was warranted to address the Veteran’s residuals. The Board instructed that the upon VA scar and peripheral nerve examination, all symptomology, to include residuals thereof should be reported and if the examiner determined the Veteran had any residuals, he was to be provided a male genitourinary examination to determine the severity of such residuals. The Veteran underwent VA scar and peripheral nerves examinations in January 2020 and the examiner noted the Veteran’s report of painful sexual recreation on each examination. However, the examiner failed to consider the Veteran’s genitourinary symptomology complaints, as instructed by the December 2019 Board remand. Accordingly, a remand is necessary to comply with the Board’s prior remand directives. The matters are REMANDED for the following action: The Veteran should be afforded a VA male genitourinary examination to determine the nature of his claimed residuals and to obtain an opinion as to whether such is possibly related to his service-connected scars and/or left lower extremity neuropathy disabilities. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s genitourinary symptomology was caused by the service-connected linear scar status post left varicocele repair; painful scar, status post repair of left varicocele with high inguinal ligation of the left spermatic vein; and/or neuropathy of the left lower extremity, femoral nerve? Please explain why or why not. (b.) If not caused by the service-connected linear scar status post left varicocele repair; painful scar, status post repair of left varicocele with high inguinal ligation of the left spermatic vein; and/or neuropathy of the left lower extremity, femoral nerve, is it at least as likely as not that the Veteran’s genitourinary symptomology is worsened beyond natural progression (aggravated) by his service-connected linear scar status post left varicocele repair; painful scar, status post repair of left varicocele with high inguinal ligation of the left spermatic vein; and/or neuropathy of the left lower extremity, femoral nerve? Please explain why or why not. In addressing the above symptomatology, including severity and etiology, the examiner should utilize the appropriate VA Disability Benefits Questionnaire, if indicated. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. Aggravation is defined as any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the genitourinary symptomology was aggravated beyond the normal progression due to the service-connected linear scar status post left varicocele repair; painful scar, status post repair of left varicocele with high inguinal ligation of the left spermatic vein; and/or neuropathy of the left lower extremity, femoral nerve disabilities does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, 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.