Citation Nr: 21003589 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-07 619 DATE: January 22, 2021 ORDER Prior to July 12, 2013, a rating higher than 10 percent for arthritis and strain with limitation of motion of the right knee is denied. Prior to July 12, 2013, a separate 30 percent rating for instability of the right knee is granted, subject to the rules and regulations governing the payment of monetary benefits. Prior to July 12, 2013, a separate 10 percent rating for symptomatic removal of cartilage of the right knee is granted, subject to the rules and regulations governing the payment of monetary benefits. From September 1, 2014, a 60 percent rating for status post total right knee replacement is granted, subject to controlling regulations governing the payment of monetary awards.   FINDINGS OF FACT 1. Prior to July 12, 2013, the Veteran’s arthritis and strain did not result in a compensable degree of limitation of motion. 2. Prior to July 12, 2013, the Veteran had severe instability of the right knee. 3. Prior to July 12, 2013, the Veteran had symptomatic removal of cartilage with swelling. 4. From September 1, 2014, the Veteran’s status post total right knee replacement resulted in chronic residuals consisting of severe painful motion or weakness with swelling in the right knee. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for arthritis and strain with limitation of motion of the right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a separate 30 percent rating for instability of the right knee, prior to July 12, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5257. 3. The criteria for a separate 10 percent rating for symptomatic removal of cartilage of the right knee, prior to July 12, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5259. 4. The criteria for a 60 percent rating for status post total right knee replacement, from September 1, 2014, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to September 1971, from September 1973 to December 1975, and from January 1992 to February 1992. This case comes to the Board from a September 2012 rating decision. In January 2018, the Veteran testified at a Board hearing. In January 2019, the Board remanded the case for additional development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful motion is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Under DC 5257, a 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of the semilunar cartilage. Under DC 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, DC 5260. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is zero degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. 1. A rating higher than 10 percent for arthritis and strain with limitation of motion of the right knee as residuals of a right anterior cruciate ligament injury, prior to July 12, 2013. The Veteran asserts that a higher rating is warranted for his right knee disability prior to July 2013, when he had a total right knee replacement. He maintains that right knee symptoms were more severe than reflected in the 10 percent rating assigned, noting use of a cane, and having to elevate his right leg to alleviate constant pain and swelling. Prior to July 12, 2013, the Veteran’s right knee disability was assigned a 10 percent rating under DC 5010-5260 based on arthritis resulting in functional loss due to painful motion. 38 C.F.R. § 4.59. In that respect, the January 2012 VA knee examination report reflects flexion was 105 degrees and extension was zero degrees in both knees. In addition, the Veteran’s October 2012 notice of disagreement (NOD), notes full range of motion of the right knee with nonweight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Further, VA treatment records in March 2013 reflect normal motion of the right knee, and he denied right knee weakness. Even in consideration of increased pain and further limitation of motion of the right knee were during flare-ups per Sharp v. Shulkin, 29 Vet. App. 26 (2017), the evidence shows that the Veteran does not have the requisite limitation of motion necessary for a rating higher than 10 percent based on limitation of flexion with pain or for a separate rating based on limitation of extension. The Board notes that prior to the right knee surgery in 2013, the Veteran was driving and had a full-time desk job. See April 2014 VA treatment records. In addition, the Veteran’s use of knee braces, along with difficulty with walking, standing, and/or ascending stairs are contemplated by the currently assigned 10 percent rating assigned for limitation of flexion of the right knee under DC 5260. Specifically, 38 C.F.R. § 4.45, which directs VA to consider disturbance of locomotion, instability of station, and interference with weight-bearing, contemplates difficulty with walking/use of assistive device for ambulation. See Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). As such, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, DCs 5260, 5261. The Board has also considered other DCs pertaining to the knee. 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). The January 2012 VA examiner reported no knee ankylosis, and there is no evidence of frequent episodes of locking, impairment of the tibia and fibula or genu recurvatum. No other separate rating, other than for instability and symptomatic removal of cartilage with swelling granted in the decision below, is warranted for impairment not already compensated by the separate 10 percent rating for arthritis and strain with limitation of motion the right knee. The Veteran is competent to report his symptoms, to include limitation of motion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Board considered the lay statements and the clinical findings of record. The Board attributes greater probative value to the clinical findings which a compensable degree of limitation of motion of the right knee. As such, a rating in excess of 10 percent is not warranted. The preponderance of the evidence is against a rating higher than 10 percent for arthritis and strain with limitation of motion of the right knee prior to July 12, 2013; the benefit of the doubt doctrine is not applicable; a rating higher than 10 percent for arthritis and strain with limitation of motion of the right knee prior to July 12, 2103, is therefore not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. A separate rating for instability of the right knee prior to July 12, 2013. The Board finds the evidence supports a separate 30 percent rating for instability of the right knee under DC 5257. The Veteran stated that he has significant instability of the right knee resulting in falls. See October 2012 NOD. Although instability was not indicated on VA examination in January 2012, the Board notes that medical evidence is not categorically more probative than lay evidence under DC 5257. See English v. Wilkie, 30 Vet. App. 347, 352-54 (2018). Moreover, VA treatment records in March 2013 reflect the Veteran’s history of six right knee surgeries, and that he had been fitted with a brace due to right knee instability. In addition, the record reflects weekly falls or near falls due to right knee instability. See March 2013 VA treatment records. In January 2013, the Veteran was treated at the emergency department for injuries sustained to his head and shoulder as a result of fall when his right knee gave out. Further, the 2019 VA examination report reflects the Veteran’s history of falls over the years due to instability of the right knee. The Board finds the Veteran’s right knee instability is separate and distinct from his limitation of motion that forms the basis for his rating under DC 5260, and from symptomatic removal of cartilage with swelling which forms the basis of the Board’s grant below of a separate rating under DC 5259. Thus, the Board’s grant a separate 30 percent rating under DC 5257 is supported and allowable without pyramiding. See Lyles, 29 Vet. App. at 107; see also Esteban, 6 Vet. App. at 261-62. Resolving reasonable doubt in favor of the Veteran, the Board finds that a separate 30 percent rating for instability of the right knee is warranted during the rating period on appeal, prior to July 12, 2013, when considering both the lay and medical evidence. The 30 percent rating is the maximum for instability under DC 5257. 3. A separate rating for symptomatic removal of cartilage of the right knee prior to July 12, 2013. The Board finds that a separate 10 percent rating is warranted under DC 5259 for symptomatic removal of cartilage of the right knee, especially when resolving doubt in the Veteran’s favor. In that respect, the Veteran reported knee swelling with walking more than one block and with weather changes. See October 2012 NOD. In addition, and although swelling was not indicated on VA examination in January 2012, VA treatment records in March 2013 reflect swelling of the right knee and a positive McMurray test. Further, a February 2013 report of magnetic resonance imaging (MRI) of the right knee reflects status post anterior cruciate ligament reconstruction, noting marked tricompartmental osteoarthrosis and chondromalacia. See August 2013 VA treatment records. Additionally, VA treatment records in March 2013 reflecting tenderness to palpation over the lateral collateral ligament. The Board finds the Veteran’s right knee symptomatic removal of cartilage with swelling is separate and distinct from his limitation of motion that forms the basis for his rating under DC 5260, and from his instability which forms the basis of the Board’s grant of a separate rating under DC 5257. Thus, the Board’s grant of an additional 10 percent rating under DC 5259 is supported and allowable without pyramiding. See Lyles, 29 Vet. App. at 107; see also Esteban, 6 Vet. App. at 261-62. The 10 percent rating is the maximum rating under DC 5259. 4. A rating higher than 30 percent for status post total right knee replacement, from September 1, 2014. From July 12, 2013 to August 1, 2013, the Veteran was assigned a temporary 100 percent rating based on the need for convalescence following a total right knee replacement. Thereafter, the 100 percent rating was assigned for the 1-year period following implantation of a prosthesis under DC 5055 for knee replacement with prosthesis. From September 1, 2014, the minimum 30 percent rating is assigned under DC 5055. Pursuant to the Boards January 2019 remand, the Veteran was afforded a VA knee examination in September 2019. The report of examination reflects right knee pain, lack of endurance, and fatigue, noting increased pain during flare ups. In addition, the examiner reported that the Veteran had swelling of the right knee with minimal ambulation and that the Veteran’s gait disturbance required a cane. A rating of 60 percent is warranted if there are chronic residuals consisting of severe painful motion or weakness. See 38 C.F.R. § 4.71a, DC 5055; Tedesco v. Wilkie, 31 Vet. App. 360, 365-66 (2019) (holding that the reference to “severe painful motion” in the criteria for a 60 percent rating under DC 5055, pertaining to total knee replacement, is not synonymous with “limitation of motion,” although limitation of motion may be considered in evaluating painful motion). The Board finds the evidence supports a 60 percent rating for residuals of a right knee replacement from September 1, 2014. See 38 C.F.R. § 4.71, DC 5055. A 60 percent rating is the maximum disability rating available under DC (other than during the 1-year following implantation) and is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. The assignment of separate ratings for manifestations of the knee, not contemplated by DC 5055, are precluded by the amputation rule. The amputation rule provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation of the extremity. 38 C.F.R. § 4.68. An amputation of the knee is rated at 60 percent under DC 5162 for an amputation of the leg at a place two thirds of the way between the knee joint and perineum. Because (1) the Veteran is currently rated at the maximum rating available under DC 5055; and (2) a rating higher than 60 percent is precluded by the amputation rule, a rating higher than 60 percent is not warranted. The evidence in favor of the claim. Thus, a 60 percent rating for status post total right knee replacement is warranted from September 1, 2014. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.