Citation Nr: 21003525 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-31 843 DATE: January 21, 2021 ORDER A rating in excess of 10 percent for a left knee disability, with limitation of motion, prior to September 27, 2016, is denied. A rating in excess of 30 percent from November 1, 2017, for residuals of a total left knee replacement surgery is denied. FINDINGS OF FACT 1. Prior to September 27, 2016, the osteoarthritis of the left knee was manifested by painful limitation of motion that was otherwise noncompensable under the appropriate Diagnostic Codes. 2. From November 1, 2017, the residuals of a total left knee replacement surgery have been manifested by an intermediate degree of weakness, pain, and limitation of motion from 0 degrees extension to, at least 100 degrees flexion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left knee disability, with limitation of motion, prior to September 27, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260. 2. The criteria for a rating in excess of 30 percent from November 1, 2017, for residuals of a total left knee replacement surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to September 1975 and from December 1995 to June 1996. The case was previously before the Board in September 2019. At that time, the issue of an increased rating in excess of 30 percent from November 1, 2017, for residuals of a total left knee replacement surgery was remanded for further development of the evidence. This has been accomplished and this issue has been returned for further appellate consideration. Regarding the issue of a rating in excess of 10 percent for a left knee disability, with limitation of motion, prior to September 27, 2016, this was denied. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court), and the Board’s decision was vacated (to that extent) pursuant to a June 2020 Order, following a Joint Motion for Remand (JMR). The parties requested that the Court vacate the Board’s September 2019 decision regarding the denial of an increased rating for left knee disability with limitation of motion prior to September 27, 2016, and remand the matter so that the Board could consider whether the evidence of record caused functional loss caused by pain to such an extent that a higher rating should be awarded. The Court granted the JMR and returned the case to the Board. Increased Rating Entitlement to a rating in excess of 10 percent for a left knee disability, with limitation of motion, prior to September 27, 2016 The Veteran contends that the limitation of motion of the left knee was more disabling than evaluated prior to September 27, 2016. Review of the record shows that service connection was first granted by rating decision dated in October 1975 when a noncompensable rating was awarded under Diagnostic Code 5257. In a March 2009 rating decision, this rating was increased to 10 percent under Diagnostic Codes 5260-5010. The Veteran was also separately awarded service connection for left knee instability, rated 20 percent, under Diagnostic Code 5257; this disability and its rating is not subject to this appeal. The Veteran claimed an increased rating in 2012 and appealed the March 2013 rating decision that confirmed and continued the 10 percent rating assigned for his left knee under Diagnostic Code 5260. The rating remained in effect until the Veteran underwent total knee replacement surgery on September 27, 2016. At that time, a temporary total rating was assigned, followed by a 100 percent rating under the criteria set forth under Diagnostic Code 5055. The rating was reduced to 30 percent in accordance with that criteria. See January 2017 rating decision. This aspect of the Veteran’s left knee disability rating will be addressed in the next section. Turning to the evidence of record, an examination of the Veteran’s knees was conducted by VA in January 2013. The diagnosis was osteoarthritis of both knees. It was noted that the Veteran had a history of having had a meniscectomy of the left knee. He described flare-ups that limited bending and prolonged standing. Range of motion of the left knee was from 0 degrees extension to 100 degrees flexion. Pain was noted at 45 degrees of extension and at 100 degrees flexion. The Veteran was unable to perform repetitive use testing on the left because of knee pain. The examiner described functional loss or impairment of the knee as being less movement than normal, pain on movement, and swelling. There was tenderness or pain to palpation for the joint line or soft tissues. Muscle strength testing was 4/5 in flexion and extension. Joint stability testing was 1+ anteriorly, posteriorly and medial-laterally. There was no patellar subluxation or dislocation. The Veteran had shin splints. The Veteran had frequent episodes of joint pain and effusion. He was administered “Euflexxa” shots every three weeks in the left knee for residuals of the meniscectomy surgery. He wore a knee brace on a regular basis. Functional impact was reported to affect the ability to work because of limited bending and prolonged standing. An examination of the Veteran’s knees was conducted by VA in November 2013. While the primary focus of this examination was centered on the right knee findings related to the left knee were reported. At that time, the Veteran reported having had no flare-ups of the knees. Range of motion of the left knee was from 0 degrees extension to 140 degrees flexion. There was no evidence of pain on motion. The Veteran was able to perform repetitive use testing on the left with no additional limitation of motion or functional loss. There was no tenderness or pain noted on palpation. Muscle strength testing was normal at 5/5. Joint stability testing was normal. There was no evidence of patellar subluxation or dislocation. There was no evidence of shin splints. The Veteran did not utilize any assistive devices. The Veteran underwent total left knee arthroplasty replacement surgery on September 27, 2016. In an April 2015 report of a December 2014 private examination of the Veteran, a physician reviewed the Veteran’s history of left knee disability, including meniscectomy, debridement of an ACL tear, and removal of an osteochondral body. It was noted that there was documentation of at least 23 episodes of evaluations for re-injuries of the left knee or objective complaints of swelling, instability, locking and loss of motion. Examination found a chronic knee effusion on the left. Range of motion noted 7 degrees loss of extension and 25 degrees loss of full flexion. Tenderness to palpation was noted over the left medial and lateral joint with patellar crepitus. The Veteran has documented arthritis of the left knee joint, which has been evaluated on the basis of limitation of motion. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriated diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Arthritis due to trauma, substantiated by X-ray findings, shall be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. The assigned Diagnostic Code 5260 suggests that the left knee was rated based on compensable limitation of flexion or extension, or on the basis of arthritis causing noncompensable limitation of motion as outlined above. 38 C.F.R. § 4.71a. A review of the evidence reflects that the left knee arthritis has manifested as osteoarthritis and been rated based on painful noncompensable limitation of motion, and that the left knee arthritis has not had compensable limitation of motion (i.e. limitation of flexion or extension) at any time during the relevant rating period. Therefore, the Diagnostic Code assigned should have included Diagnostic Codes 5003 or 5010, to show that the knee disorder with osteoarthritis is being rated based on noncompensable limitation of motion that is painful. For this reason, the Board is changing the Diagnostic Code for the to 5003 and 5010 to reflect the actual rating already assigned. 38 C.F.R. § 4.71a. 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. Limitation of extension to 10 degrees warrants a 10 percent rating. A 20 percent rating requires that extension be limited to 15 degrees. Extension limited to 20 degrees warrants a 30 percent rating. A 40 percent rating requires extension to be limited to 30 degrees. A 50 percent rating is awarded for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. For impairment of the tibia and fibula, nonunion with loose motion requiring a brace, a 40 percent rating is warranted. For malunion, with marked knee or ankle disability, a 30 percent rating is warranted. Malunion with moderate knee or ankle disability warrants a 20 percent rating. Malunion with slight knee or ankle disability warrants a 10 percent rating. 38 C.F.R. § 4.71a, Code 5262. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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.” The spine has no opposite 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 left knee arthritis prior to September 27, 2016. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and limitation of motion of the knee joint, but even considering the Veteran’s lay reports of symptoms and noted functional loss. The JMR specifically references the January 2013 examination report that shows that the Veteran was unable to perform repetitive use testing and that pain was demonstrated at 45 degrees extension and 100 degrees flexion. The examination report does not demonstrate; however, that the Veteran was unable to move his knee to less than full extension, notwithstanding the pain. Moreover, the examination performed in August 2013 shows no limitation of motion of the left knee in either extension or flexion as a result of the left knee arthritis. The private examination demonstrates noncompensable limitation of both extension and flexion, which warrants no more than a 10 percent rating under Diagnostic Code 5003. Thus, the Board finds no basis for a rating in excess of 10 percent on the basis of limitation of motion due to arthritis. Although pain on motion was demonstrated in January 2013 it was not consistently shown several months thereafter and not demonstrated to anywhere near the same extent on private examination in December 2014. The Board has considered the possibility of functional impairment set forth under the Court decisions noted in the JMR, but does not find such functional impairment that would warrant a rating in excess of 10 percent. In this regard, the degree of additional limitation reflected by the record would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or limitation of extension to 15 degrees. 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). In this regard, a separate rating under Diagnostic Code 5257 has been long in effect. This evaluation was adjudicated by the Board in the September 2019 decision and specifically left undisturbed in the JMR. As such, any evaluation under a separate Diagnostic Code is not for adjudication at this time. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for limitation of motion of the left knee due to arthritis prior to September 27, 2016. 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. Entitlement to a rating in excess of 30 percent from November 1, 2017, for residuals of a total left knee replacement surgery As noted above, the Veteran underwent a left total knee arthroplasty (TKA) on September 27, 2016. Pursuant to 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, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. An examination was conducted by VA in February 2017. At that time, the pertinent diagnosis was left total knee replacement. The Veteran did not report having flare-ups of his left knee TKA. Functional loss included ambulation and standing to be limited to 10 minutes at a time. He could no longer climb stairs or ladders or complete squats. Range of motion of the left knee was from 0 degrees extension to 100 degrees flexion. The loss of range of motion was not stated to contribute to functional loss. Pain was noted on flexion and extension. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, but there was pain on weight bearing. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examination was not conducted immediately after repetitive use over time or during a flare-up. There was no noted pain, weakness, fatigability, or incoordination that significantly limited functional ability during a flare-up. The examiner did note less movement than normal, disturbance of locomotion and interference with standing. Muscle strength testing was normal at 5/5. There was no muscle atrophy or ankylosis. Joint stability testing showed no recurrent subluxation, lateral instability, or recurrent effusion. The Veteran’s total left knee replacement was shown to cause residuals of intermediate degrees of residual weakness, pain, or limitation of motion. The examiner noted that the Veteran’s functional loss included ambulation and/or standing limited to 10 minutes at a time and he could no longer climb stairs, ladders, nor complete squats. The examiner noted that there was pain on non-weight and weight bearing, active and passive range of motion were equal, and there was pain on active and passive range of motion. Another examination was conducted by VA in September 2020 pursuant to a remand by the Board. Record review showed that the Veteran had been doing well following the TKA, with no complaints. An October 2019 follow-up evaluation showed a history of left knee pain and swelling with physical examination being normal. An X-ray study showed status post arthroplasty, no hardware malfunction, and no effusion. A physical therapy note that month showed range of motion of 0 degrees extension to 122 degrees flexion. Current symptoms were noted to be knee pain of 2/10 with occasional knee swelling. The Veteran took ibuprofen and used a TENS unit and ice pack as needed. The Veteran stated that he experienced moderate knee pain and some swelling after walking the yard to trim his grass. This occurred every weekend in the summer, but less often in the winter. This limited the Veteran’s ability to do extensive yard work. He also reported that he needed to sit while teaching a three-hour class, while he used to be able to stand. Range of motion testing of the left knee was from 0 degrees extension to 120 degrees flexion. There was no pain on range of motion or objective evidence of localized tenderness noted on examination. There was no pain with weight bearing or objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examination was not conducted immediately following repetitive use or during a flare-up. Muscle strength testing was normal. There was no muscle atrophy and no ankylosis. There was no evidence of recurrent subluxation, lateral instability, or effusion. Joint stability testing was normal. The Veteran reported left knee swelling after prolonged standing activities, but there was no swelling on examination. Residuals of the total knee replacement were stated to be intermediate degrees of residual weakness, pain or limitation of motion. There was no objective evidence of pain on passive range of motion testing and no objective evidence of pain when the joint was used in non-weight bearing. The record shows that the Veteran has an intermediate degree of residual weakness, pain, or limitation of motion. As such, any rating in excess of the 30 percent that has been assigned would have to meet the criteria for Diagnostic Codes 5256, 5260. 5261, or 5262. There is no ankylosis demonstrated, so Diagnostic Code 5256 is not applicable. Neither is there evidence of tibia and fibula impairment so that Diagnostic Code 5262 is not for application. Regarding limitation of extension or flexion, the record shows that the Veteran is able to move the knee from 0 degrees extension to, at least 100 degrees flexion after the TKA surgery that was performed in September 2019. Under these circumstances, the Board finds no basis for a rating in excess of 30 percent. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for increased rating for residuals of a TKA of the left knee, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.