Citation Nr: 21066067 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-18 214 DATE: October 28, 2021 ORDER For the rating period from February 1, 2018, an increased disability rating of 60 percent, but no higher, for degenerative joint disease in the left knee status post total left knee arthroplasty (left knee disability) is granted. For the initial rating period from February 1, 2018 to October 11, 2019, a higher initial disability rating in excess of 10 percent for right hip impairment of flexion (limitation of right hip flexion) is denied. For the initial rating period from February 1, 2018 to October 11, 2019, a higher (compensable) initial disability rating for right hip impairment of abduction, adduction, and rotation (impairment of the right thigh) is denied. For the initial rating period from February 1, 2018 to October 11, 2019, a higher initial disability rating in excess of 10 percent for left hip impairment of flexion (limitation of left hip flexion) is denied. For the initial rating period from February 1, 2018 to October 11, 2019, a higher (compensable) initial disability rating for left hip impairment of abduction, adduction, and rotation (impairment of the left thigh) is denied. A higher (compensable) initial disability rating for residual surgical scars on the left knee (left knee surgical scars) is dismissed. A higher initial disability rating in excess of 20 percent for right knee limitation of extension (right knee disability) is dismissed. FINDINGS OF FACT 1. For the rating period from February 1, 2018, the left knee disability has more nearly approximated chronic residuals of a prosthetic knee replacement consisting of severe painful motion or weakness in the affected extremity. 2. For the initial rating period on appeal from February 1, 2018 to October 11, 2019, the right hip degenerative arthritis with trochanteric pain syndrome (right hip disability) has manifested in noncompensable limitation of right hip flexion with painful motion that does not more nearly approximate right hip flexion limited to 30 degrees or less, limitation of extension to 5 degrees, impairment of the right thigh in the form of inability to toe-out more than 15 degrees (limitation of rotation), inability to cross legs (limitation of adduction), motion lost beyond 10 degrees of abduction, ankylosis, impairment of the femur, or flail hip joint. 3. For the initial rating period on appeal from February 1, 2018 to October 11, 2019, the left hip degenerative arthritis with trochanteric pain syndrome (left hip disability) has manifested in noncompensable limitation of left hip flexion with painful motion that does not more nearly approximate left hip flexion limited to 30 degrees or less, limitation of extension to 5 degrees, impairment of the left thigh in the form of inability to toe-out more than 15 degrees (limitation of rotation), inability to cross legs (limitation of adduction), motion lost beyond 10 degrees of abduction, ankylosis, impairment of the femur, or flail hip joint. 4. Per a March 2021 Joint Motion for Partial Remand, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issues of higher initial ratings for the left knee scars and right knee disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the rating period from February 1, 2018, the criteria for an increased disability rating of 60 percent, but no higher, for the left knee disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 2. For the initial rating period on appeal from February 1, 2018 to October 11, 2019, the criteria for a higher initial disability rating in excess of 10 percent for right hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5252. 3. For the initial rating period on appeal from February 1, 2018 to October 11, 2019, the criteria for a higher (compensable) initial disability rating for right hip impairment of the right thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic 5253. 4. For the initial rating period on appeal from February 1, 2018 to October 11, 2019, the criteria for a higher initial disability rating in excess of 10 percent for left hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5252. 5. For the initial rating period on appeal from February 1, 2018 to October 11, 2019, the criteria for a higher (compensable) initial disability rating for left hip impairment of the left thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic 5253. 6. The criteria for withdrawal of a substantive appeal have been met regarding the appeal for a higher initial (compensable) rating for left knee surgical scars. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of a substantive appeal have been met regarding the appeal for a higher initial rating in excess of 20 percent for the right knee disability. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from November 1974 to May 1977. The issues of an increased disability rating for the left knee disability, a higher initial rating for the right knee disability, and a higher initial rating for the left knee surgical scars were previously before the Board in June 2020, at which time the Board denied an increased rating for the left knee disability and higher initial ratings for the right knee disability and left knee scars. The Veteran appealed the Board's June 2020 decision to the United States Court of Appeals for Veterans Claims (Court). The Board's June 2020 decision was remanded pursuant to a March 2021 Joint Motion for Partial Remand (JMPR) for the Board to provide an adequate statement of reasons or basis as to whether the left knee disability meets the 60 percent rating criteria under 38 C.F.R. § 4.71A, Diagnostic Code 5055. Additionally, the issues of higher initial disability ratings for right hip limitation of flexion, right hip impairment of the right thigh, left hip limitation of flexion, and left hip impairment of the left thigh were previously before the Board in November 2019, at which time the Board remanded the matters to the Regional Office (RO) for further development. The requested development has now been completed and the issues have been returned to the Board for appellate adjudication. In a September 2021 Appellate Brief, the Veteran's counsel wrote that the Veteran is only seeking higher initial ratings for right hip limitation of flexion, right hip impairment of the right thigh, left hip limitation of flexion, and left hip impairment of the left thigh for the period from February 1, 2018 to October 12, 2019; thus, the Board's instant decision only addresses symptoms of right hip limitation of flexion, right hip impairment of the right thigh, left hip limitation of flexion, and left hip impairment of the left thigh for this period. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 C.F.R. § 4.3. When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 1. Rating the left knee disability from February 1, 2018 The Veteran underwent left knee arthroscopic surgery on December 7, 2016. In a February 2017 rating decision, the RO granted a temporary total (100 percent) disability rating for the left knee replacement until February 1, 2018, at which point a disability rating of 30 percent was assigned for the residual disability. The Veteran generally contends that the left knee symptoms and impairment have remained severe since surgery, to warrant a 60 percent disability rating from February 1, 2018 to the present. See February 2018 Notice of Disagreement. Diagnostic Code 5055 provides a total rating (100 percent) for one year following prosthetic replacement of a knee joint. Once any applicable total rating period has elapsed, as is the case here, under Diagnostic Code 5055 a 30 percent rating is to be assigned where there are intermediate degrees of residual weakness, pain, or limitation of motion rated by analogy to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is to be assigned if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. The minimum rating that may be assigned for a prosthetic knee is 30 percent. Following the assignment of a total disability rating, the maximum schedular rating that can be assigned under Diagnostic Code 5055 is 60 percent. Having reviewed all the relevant evidence of record, lay and medical, the Board finds that, from February 1, 2018, the Veteran's service-connected left total knee arthroplasty more nearly approximated chronic residuals consisting of severe painful motion or weakness in the effected extremity, warranting the assignment of a 60 percent disability rating under Diagnostic Code 5055. At a VA knee examination in November 2017, the Veteran reported flare-ups of increased pain and stiffness in the left knee. The November 2017 VA examiner noted positive findings of reduced muscle strength in the left knee measured at 3 out of 5, and assessed an intermediate degree of residual weakness, pain, or limitation of motion following the December 2016 left knee replacement surgery. The VA examiner also noted regular use of a knee brace and walker to assist the Veteran's ambulation. The VA examiner remarked that examination of the Veteran's left knee revealed ongoing knee discomfort as well as stiffness and weakness; the left knee replacement that was performed 11 months ago was healing rather slowly, and the left knee disability remained significantly symptomatic at the time. At another VA examination in January 2020, the Veteran reported that he had undergone a total left knee replacement three years ago with delayed healing. The Veteran endorsed persistent swelling in the left knee, constant pain, locking and giving way, that he needed to use a walker to ambulate outside the house, and needed a cane to ambulate while at home. The Veteran endorsed functional loss in the left knee, that the left knee was limited in standing and walking, that he was unable to kneel or squat, and that due to the left knee symptoms he requires help for activities of daily living such as dressing. The January 2020 VA examiner noted left knee flexion was limited to 30 degrees and extension was limited to 10 degrees following repetitive use, and that there was effusion in the left knee. The VA examiner assessed intermediate degrees of residual symptoms following the December 2016 left knee replacement surgery. The November 2017 and January 2020 VA examiners found that the Veteran only had intermediate degrees of residual weakness, pain, or limitation of motion; however, after reviewing all the evidence of record, the Board finds that this evidence is outweighed by the other findings contained in the November 2017 and January 2020 VA examination reports. The other evidence of record shows that the Veteran experiences constant pain in the left knee, that the left knee remains significantly symptomatic with objective findings of effusion and limitation of left knee flexion and extension, and that the left knee has resulted in significant functional impairment including the need to use a walker to ambulate and the need for assistance with activities of daily living. In the instant decision, for the entire relevant rating period on appeal (from February 1, 2018), the Board grants the maximum 60 percent disability rating for severe residuals following left knee replacement. Under the amputation rule of 38 C.F.R. § 4.68, the combined rating for disabilities of an extremity shall not exceed the rating provided for amputation of that extremity at the elective level. In other words, the combined rating for the Veteran's left leg/knee disabilities cannot exceed the rating provided for an above the knee amputation of the leg. Amputation of the leg above the knee is rated as 60 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5162-5164. As such, the Board need not consider whether any separate compensable ratings are warranted as the maximum possible benefit is being awarded in the instant decision. For these reasons, for the rating period on appeal from February 1, 2018, the Board finds that the Veteran's left knee disability more nearly approximated chronic residuals consisting of severe painful motion or weakness in the affected extremity. As such, the criteria for an increased disability rating of 60 percent for the left knee disability have been met. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5055. As the grant of a 60 percent disability rating for this period is both the maximum rating under Diagnostic Code 5055 and the maximum rating under the amputation rule, there is no other question of law or fact for the Board to address as to the left knee disability. See 38 U.S.C. § 7104. 2. Rating right hip limitation of flexion 3. Rating right hip impairment of the right thigh 4. Rating left hip limitation of flexion 5. Rating left hip impairment of the left thigh For the initial rating period on appeal from February 1, 2018 to October 11, 2019, the Veteran is in receipt of an initial 10 percent rating for limitation of right hip flexion under Diagnostic Code 5003-5252. 38 C.F.R. § 4.71a. The Veteran is also in receipt of an initial noncompensable rating for right hip impairment of the right thigh under Diagnostic Code 5253. 38 C.F.R. § 4.71a. For the initial rating period on appeal from February 1, 2018 to October 11, 2019, the Veteran is also in receipt of an initial 10 percent rating for limitation of left hip flexion under Diagnostic Code 5003-5252. 38 C.F.R. § 4.71a. The Veteran is also in receipt of an initial noncompensable rating for left hip impairment of the left thigh under Diagnostic Code 5253. 38 C.F.R. § 4.71a. Hyphenated Diagnostic Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The additional Code, shown after the hyphen, represents the basis for the rating, while the primary Code indicates the underlying source of the disability. The initial 10 percent ratings for right and left hip limitation of flexion are based on the substantive rating criteria of Diagnostic Code 5003. See May 2017 rating decision. Diagnostic Code 5003 provides for a 10 percent rating for a major joint (includes the hip) where there is pain with noncompensable limitation of motion. 38 C.F.R. § 4.71a. The evidence in this case shows only noncompensable limitation of right and left hip/thigh flexion and extension, and does not show impairment of the right and left thighs; therefore, use of Diagnostic Codes 5252, and 5253 with the 10 percent rating is not appropriate. The appropriate Diagnostic Codes for rating compensable limitation of motion of the hip and thigh are Diagnostic Codes 5251 through 5253 of 38 C.F.R. § 4.71a. Hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5251 (limitation of extension of the thigh), a 10 percent rating is assigned with extension limited to 5 degrees. Under Diagnostic Code 5252 (limitation of flexion of the thigh), a 10 percent rating is assigned with flexion limited to 45 degrees; a 20 percent rating is assigned with flexion limited to 30 degrees; a 30 percent rating is assigned with flexion limited to 20 degrees; and a 40 percent rating is assigned with flexion limited to 10 degrees. Under Diagnostic Code 5253, pertaining to impairment of the thigh, a 10 percent rating is warranted for limitation of adduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees; a 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. Diagnostic Code 5250 contemplates ankylosis of the hip. Favorable ankylosis in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction warrants a 60 percent rating; intermediate ankylosis warrants a 70 percent rating; and unfavorable ankylosis, which contemplates extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated, warrants a 90 percent rating. Diagnostic Code 5254 provides an 80 percent disability rating where there is a flail joint of the hip. Diagnostic Code 5255 contemplates impairment of the femur. Malunion of the femur warrants a 10 percent rating with slight knee or hip disability, a 20 percent rating with moderate knee or hip disability, and 30 percent rating with marked knee or hip disability. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 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 is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limitation of motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). If the right hip disability does not warrant a compensable rating under the appropriate diagnostic codes based on limitation of motion, the minimum compensable rating (10 percent) may be assigned where there is satisfactory evidence of painful motion. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 1. After a review of all the evidence of record the Board finds that, for the initial rating period on appeal from February 1, 2018 to October 11, 2019, the right and left hip disabilities have manifested in noncompensable limitation of right and left hip flexion with painful motion that does not more nearly approximate right and left hip flexion limited to 30 degrees or less, limitation of extension to 5 degrees, impairment of the right or left thigh in the form of inability to toe-out more than 15 degrees (limitation of rotation), inability to cross legs (limitation of adduction), motion lost beyond 10 degrees of abduction, ankylosis, impairment of the femur, or flail hip joint. Accordingly, the Board finds that for the initial rating period on appeal from February 1, 2018 to October 11, 2019, the criteria for higher initial disability ratings in excess of 10 percent for right and left hip limitation of flexion have not been met; for the initial rating period from February 1, 2018 to October 11, 2019, the criteria for higher initial compensable disability ratings for right and left thigh impairment have not been met. 38 C.F.R. §§ 4.3, 4.7, 4.71a. An April 2017 VA examination report shows the Veteran reported difficulty walking and standing during episodes of flare ups, and that he had difficulty walking, climbing stairs, and with prolonged standing. The April 2017 VA examiner was unable to test all ranges of motion maneuvers in the right or left hips due to back and knee pain, but noted that right hip abduction was measured to 40 degrees, abduction was measured to 25 degrees, and that the Veteran was able to cross his legs; left hip abduction was also measured to 40 degrees, abduction was measured to 25 degrees, and the Veteran was able to cross his legs. Although the April 2017 VA examiner was unable to fully test all ranges of motion in the right and left hips, other VA and private treatment records during the period from February 1, 2018 to October 2019 also do not reflect right or left hip/thigh limitation of motion that more nearly approximates flexion limited to 30 degrees or less to meet the 20 percent rating criteria under Diagnostic Code 5252, or extension limited to 5 degrees to meet the 10 percent rating criteria under Diagnostic Code 5251. Based on the foregoing, the Board finds that higher initial disability ratings for limitation of right and left hip flexion in excess of 10 percent under Diagnostic Code 5252 are not warranted. Additionally, separate disability ratings of 10 percent are also not warranted under Diagnostic Codes 5253 for impairment of the right or left thigh as the April 2017 VA examiner found the Veteran was able to cross his legs. The Board has also considered whether separate disability ratings are warranted for any other right or left hip/thigh disability. As discussed above, the evidence of record does not reflect that the right or left hip/thigh is ankylosed, or has developed into an impaired femur or a flail hip joint; thus, separate disability ratings or increased disability ratings are not warranted under Diagnostic Codes 5250, 5254, or 5255. 38 C.F.R. § 4.71a. 6. Rating left knee surgical scars 7. Rating the right knee disability Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. In a March 2021 written statement in the form of a Joint Motion for Partial Remand, the Veteran asked to withdraw the issues of issues of higher initial ratings for the left knee surgical scars and right knee disability. As the Veteran has withdrawn the appeals regarding the issues of higher initial ratings for the left knee surgical scars and right knee disability, there remains no allegation of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review these issues, and the issues of higher initial ratings for left knee surgical scars and right knee disability will be dismissed. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.