Citation Nr: 21004156 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 09-32 719 DATE: January 26, 2021 ORDER A rating in excess of 30 percent from May 1, 2013 to September 21, 2016, for degenerative arthritis left knee status post excision of the prepatellar bursa and total knee replacement (hereinafter “left knee disability”) is denied. A rating of 60 percent, and no higher, since September 22, 2016, for left knee disability is granted. FINDINGS OF FACT 1. From May 1, 2013 to September 21, 2016, the Veteran’s service-connected left knee disability was not manifested by at least chronic residuals of left total knee replacement consisting of severe painful motion or weakness in the affected extremity. 2. Since September 22, 2016, the Veteran’s service-connected left knee disability has been manifested by at least chronic residuals of left total knee replacement consisting of severe painful motion and weakness in the affected extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent from May 1, 2013 to September 21, 2016 for left knee disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2019). 2. The criteria for entitlement to a rating of 60 percent, and no higher, since September 22, 2016 for left knee disability have been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1971 to July 1975. In February 2013, the Board remanded the issue of entitlement to a rating in excess of 20 percent for service-connected left knee disability for additional evidentiary development. In October 2015, August 2016, and February 2017, the Board remanded the issues of entitlement to a rating in excess of 20 percent prior to March 1, 2012 and a rating in excess of 30 percent since May 1, 2013 for service-connected left knee disability for additional evidentiary development. In October 2017, the Board denied the issue of entitlement to a rating in excess of 20 percent prior to March 1, 2012 for service-connected left knee disability and remanded the issue of entitlement to a rating in excess of 30 percent since May 1, 2013 for service-connected left knee disability for additional evidentiary development. In April 2020, the Board remanded the issue of entitlement to a rating excess of 30 percent since May 1, 2013 for service-connected left knee disability for additional evidentiary development and it has been returned to the Board for appellate review. There was substantial compliance, collectively, with the February 2013, October 2015, August 2016, February 2017, October 2017, and April 2020 remand directives for the remaining issue on appeal discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in March 2013 and November 2015, March 2017, and November 2017 notice letters the Veteran was requested to identify VA and non-VA medical providers who have treated him for the left knee disability, and to complete the VA Form 21-4142 in order for VA to contact and request treatment records. VA treatment records dated since March 2009 (March 2009 to November 2016) and since April 2017 (May 2017 to August 2017 and March 2018 to October 2019) were obtained and associated with the record. The Veteran was provided VA Disability Benefits Questionnaire (DBQ) examinations for knee and lower leg conditions in December 2015, September 2016, April 2017, and September 2020, and a VA DBQ medical opinion in December 2015, that collectively, complied with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). The issue was also readjudicated in April 2013, February 2016, November 2016, July 2017, November 2019, and September 2020 supplemental statements of the case (SSOCs). The Board acknowledges that in the December 2020 written brief, the Veteran’s representative noted the Veteran’s request for maximum benefit allowed by law and regulation, including but not limited to, an extra-schedular rating based on the exceptional and unusual symptoms and severity of his service-connected disability. nevertheless, such contention is generic with no specific assertion as to any failure or deficiency committed by VA. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to a rating in excess of 30 percent since May 1, 2013 for left knee disability Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected left knee disability in this case, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 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. 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.”). In a March 1976 VA rating decision, service connection for left knee surgery was granted. The Veteran was assigned a 10 percent disability rating effective for the entire rating period from July 10, 1975 (the date following separation from active service). See 38 C.F.R. § 4.71a, Diagnostic Code 5257-5010. The assigned 10 percent disability rating was continued by the Agency of Original Jurisdiction (AOJ) in March 1977 and May 1978 VA rating decisions and the issue was perfected on appeal to the Board. In a February 1979 decision, the Board increased the disability rating to 20 percent. In a May 1979 VA rating decision, the AOJ implemented the February 1979 Board decision and assigned the 20 percent disability rating effective for the entire rating period from July 10, 1975. Id. On January 30, 2007, the Veteran’s request for a higher rating for the service-connected left knee disability was obtained and associated with the record. In the August 2007 VA rating decision, the AOJ continued the 20 percent disability rating for service-connected left knee disability, and the Veteran perfected this issue on appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5257-5010. In an April 2013 VA rating decision, the AOJ assigned a temporary 100 percent disability rating effective from March 1, 2012 to April 30, 2013 and a 30 percent disability rating effective from May 1, 2013. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. Since the 20 percent disability rating prior to March 1, 2012 and the 30 percent disability rating since May 1, 2013 are not the maximum ratings available during the specified appeal periods, these issues were returned to the Board and characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). In the April 2013 VA rating decision, the AOJ also granted the issue of service connection for painful scar as secondary to the service-connected left knee disability, assigned at 10 percent disabling effective from April 11, 2013. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Any consideration of a higher rating for this service-connected scar associated with the left knee disability will not be discussed in this case. As previously noted, the issue of entitlement to a rating in excess of 20 percent prior to March 1, 2012 for service-connected left knee disability was denied on the merits in the October 2017 Board decision. The remaining issue on appeal for consideration is whether a rating in excess of 30 percent since May 1, 2013 for left knee disability is warranted in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. Diagnostic Code 5055 provides for prosthetic replacement of the knee joint at 30 percent for intermediate degrees of residual weakness, pain, or limitation of motion rated by analogy to Diagnostic Codes 5256, 5261, or 5262; 60 percent for chronic residuals consisting of severe painful motion or weakness in the affected extremity; and 100 percent, the maximum available, for one year following implementation of prosthesis. 38 C.F.R. § 4.71a. From May 1, 2013 to September 21, 2016 Review of the evidentiary record during the appeal period from May 1, 2013 to September 21, 2016 documents the following musculoskeletal symptomatology of the left knee. At the December 2015 VA DBQ examination, the Veteran reported having occasional knee joint space pain medially, inability to run, and limited ability to bend, squat, kneel, and climb with the left knee. Upon clinical evaluation, the Veteran demonstrated left knee active extension to 0 degrees with pain and joint space tenderness medially. The VA examiner noted the following findings as additional contributing factors of the left knee: less movement than normal due to ankylosis, adhesions, etc., swelling, and deformity. The VA examiner also noted there were no findings of additional functional loss or range of motion after repetitive use testing, muscle atrophy, ankylosis, history of recurrent effusion, current symptoms of a meniscal condition, use of assistive devices, and marked “no” for any clinical findings of any tibial and/or fibular impairment of the Veteran’s left knee. Following the clinical evaluation, the VA examiner characterized the Veteran’s residuals from the 2009 meniscectomy of the left knee as requiring total knee replacement and that residuals from the March 2012 left total knee joint replacement as intermediate degrees of residual weakness, pain or limitation and motion. The VA examiner also noted the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time, and marked “no” for any finding of pain, weakness, fatigability or incoordination significantly limiting functional ability with repeated use over a period of time. In a December 2015 VA DBQ medical opinion, the VA examiner further noted, in part, the following: The [V]eteran does not have flare ups. His total knee replacement was [su]ccessful in as much as medically possible with current technology. He has occasional pain and limited flexion. I have commented upon his current le[v]el of occupational disability in the accompanying examination of the left knee. No running. Limited bending, squatting, kneeling, and climbing. Capable of light work with these additional restrictions. Review of VA treatment records dated from May 1, 2013 to September 21, 2016 shows the Veteran’s reports in November 2013 and November 2014 of the left knee still swelling from time to time, clinical findings of full range of motion of the knees, and assessment of the left knee from treatment providers as left knee pain improved with surgery but still with occasional swelling. Review of the evidentiary record also shows the Veteran reported in a June 2013 VA Form 21-4142 that the “left knee continually swells up with standing and walking too much.” In a June 2013 correspondence, he reported still having trouble with the left knee specifically noting swelling and pain after standing for more than 10 minutes or climbing stairs and walking for more than approximately 15 minutes. After a review of the evidence discussed above from May 1, 2013 to September 21, 2016, the Board finds that the Veteran’s service-connected left knee disability was not manifested by at least chronic residuals of left total knee replacement consisting of severe painful motion or weakness in the affected extremity, ankylosis, or extension limited to at least 30 degrees, or nonunion of the left tibia and fibula with loose motion requiring brace. The Board finds that such symptomatology, as discussed above to include pain, adhesions, swelling, deformity, and limitation of motion (described as inability to run and limited ability to bend, squat, kneel, and climb) is contemplated in the currently assigned 30 percent disability rating. The Board acknowledges the December 2015 VA examiner’s finding of less movement than normal due to ankylosis; however, the Veteran’s range of motion findings of the left knee at the December 2015 VA DBQ examination and at VA treatment sessions in November 2013 and November 2014 were, at worst, to 0 degrees extension, the December 2015 VA examiner marked “no” for any findings of ankylosis, and the Veteran is able to move his left knee thus does not support any finding of ankylosis of the left knee. There were also no clinical findings of nonunion of the left tibia and fibula as noted in the December 2015 VA DBQ examination report. Moreover, the December 2015 VA examiner concluded after the complete evaluation that the Veteran’s residuals from the March 2012 left total knee joint replacement were best characterized as intermediate degrees of residual weakness, pain or limitation and motion. To meet the next-higher 60 percent rating, chronic residuals consisting of severe painful motion or weakness would need to have been shown. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. Additionally, to meet the next-higher 40 percent rating, ankylosis or extension limited to at least 30 degrees, or nonunion of the left tibia and fibula with loose motion requiring brace would need to have been shown. Id. at Diagnostic Codes 5256, 5261, and 5262. After a review of the evidence discussed above during the appeal period, the Board finds that the functional equivalent of ankylosis and extension limited to 30 degrees or more or nonunion of the left tibia and fibula is not shown at any time nor are chronic residuals of left total knee replacement consisting of severe painful motion or weakness in the affected extremity shown from May 1, 2013 to September 21, 2016. Such findings were not shown, even when considering the Veteran’s reported symptomatology for the service-connected left knee disability. The Veteran’s reported symptomatology did not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant a rating in excess of 30 percent for the service-connected left knee disability at any time during the appeal from May 1, 2013 to September 21, 2016 under 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings in DeLuca and Mitchell. For these reasons, a rating in excess of 30 percent from May 1, 2013 to September 21, 2016 for left knee disability is denied. 38 C.F.R. §§ 4.3, 4.7. Since September 22, 2016 Review of the evidentiary record during the appeal period since September 22, 2016 documents the following musculoskeletal symptomatology of the left knee. Review of the September 22, 2016 VA DBQ examination report shows the Veteran reported left knee flare-ups described as increased swelling with prolonged sitting and walking, the avoidance of prolonged sitting, walking, and climbing stairs, and the inability to bend, squat, run, or kneel. The Veteran demonstrated left knee active range of motion with pain, pain with weightbearing, and pain to lateral joint space and numbness to medial left knee. The VA examiner noted findings of a history of recurrent effusion described as swelling and inflammation to left knee with prolonged sitting and walking, as well as frequent episodes of left joint pain with prolonged walking and joint effusion with prolonged sitting and walking. Following the clinical evaluation, the VA examiner concluded there was “increased severity” and characterized the Veteran’s residuals from the from the March 2012 left total knee replacement as intermediate degrees of residual weakness, pain or limitation and motion; chronic residuals consisting of severe painful motion or weakness; and severe painful bending motion. Review of the April 2017 VA DBQ examination report shows left knee symptoms of painful active and passive motion, pain with weight and non-weight bearing, flare ups described as inflammation and swelling, as well as difficulty with climbing stairs, walking for extended period of time, and with prolonged sitting. Most recently, review of the September 2020 VA DBQ examination report shows the Veteran’s ongoing report of left knee symptoms including pain, swelling, stiffness, difficulty with prolonged sitting, daily severe flare ups, inability to straighten 100 percent, and weakness, as well as ongoing objective evidence of left knee painful active and passive motion. The VA examiner noted additional findings of muscle atrophy, reduction in muscle strength in the left knee, and the Veteran’s occasional use of a brace for the left knee. After a review of such evidence since September 22, 2016, the Board finds that the Veteran’s service-connected left knee disability has been manifested by at least chronic residuals of left total knee replacement consisting of severe painful motion and weakness in the affected extremity. The next-higher and maximum rating of 100 percent under Diagnostic Code 5055 is assigned for one year following implementation of prosthesis. As previously noted, the Veteran underwent the left total knee replacement in March 2012 and the temporary 100 percent disability rating for this disability was assigned from March 1, 2012 to April 30, 2013 in the April 2013 VA rating decision. See 38 C.F.R. § 4.71a. As such, the Board finds that consideration for a 100 percent rating under Diagnostic Code 5055 at any time during the appeal period since September 22, 2016 is not warranted. Next, there are no Diagnostic Codes for the knee and leg that provide a schedular rating higher than 60 percent. In fact, the maximum schedular rating for ankylosis of the knee under Diagnostic Code 5256 is 60 percent. 38 C.F.R. § 4.71a. As a result, consideration for a schedular rating in excess of 60 percent under any Diagnostic Code for the knee and leg at any time during the appeal period since September 22, 2016 is not warranted. Additionally, given that the Veteran is already in receipt of the schedular maximum for limitation of motion of the knee since September 22, 2016, inquiry into the DeLuca factors is moot. See DeLuca, 8 Vet. App. at 206; Johnston v. Brown, 10 Vet. App. 80, 87 (1997). The Board notes that the maximum schedular rating for limitation of flexion of the leg under Diagnostic Code 5260 is 30 percent and for limitation of extension of the leg under Diagnostic Code 5261 is 50 percent. See 38 C.F.R. § 4.71a. For these reasons discussed above, a rating of 60 percent, and no higher, for left knee disability since September 22, 2016 is warranted. 38 C.F.R. §§ 4.3, 4.7. Lastly, the Board considers the Veteran’s reported history of symptomatology related to the left knee. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, although the descriptions of his symptoms are competent and credible, they do not show that the criteria for a rating in excess of 30 percent from May 1, 2013 to September 21, 2016 or a rating in excess of 60 percent thereafter has been met. The Board also considered other potentially applicable Diagnostic Codes. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Additionally, the evidence does not reflect that there are any other musculoskeletal disorders of the knee that the Veteran’s left knee disability is more properly rated under another Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. Accordingly, a higher rating under alternate Diagnostic Codes is not warranted. Moreover, the Board has considered the possibility of additional staged ratings and finds that the proper ratings for the left knee disability have been in effect for the appropriate appeal periods from May 1, 2013 to September 21, 2016 and thereafter. Accordingly, further staged ratings are inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.