Citation Nr: 21066752 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 12-15 436 DATE: November 2, 2021 ORDER Entitlement to a disability rating of 60 percent for right total knee replacement from April 1, 2021 is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT From April 1, 2021, the probative evidence shows the Veteran's right knee total knee replacement surgery resulted in chronic residuals consisting of severe painful motion or weakness in the affected extremity. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 30 percent for right total knee replacement from April 1, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5055, 5256-5263. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1978 to July 1986. This matter was remanded by the Board of Veterans' Appeals (Board) in a December 2020 decision. The Veteran testified before the undersigned Veterans Law Judge at a March 2014 hearing before the Board of Veterans' Appeals (Board). In December 2020 and July 2021 decisions, the Board remanded the claim for an increased rating for right knee total replacement for a VA examination to assess the severity of the Veteran's right knee. The Board finds that the RO has substantially complied with its remand directives, and the Board may now proceed with adjudication. 1. Entitlement to a disability rating in excess of 30 percent for right total knee replacement from April 1, 2021 The Veteran asserts that her right knee disability is more severe than is reflected by her current evaluation. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. See 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, the Veteran is in receipt of a 100 percent temporary total rating for her right knee for the period from February 24, 2020 to April 1, 2021. See September 2020 codesheet. This rating, and the 30 percent rating assigned from April 1, 2021, were assigned pursuant to 38 C.F.R. § 4.71a, DC 5055. Notably, effective February 7, 2021, VA revised the criteria for "knee instability" and "knee replacement" under Diagnostic Codes 5257 and 5055. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4. 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). If a law or regulation changes during the pendency of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. The period on appeal begins after February 7, 2021; therefore, the Board will only consider the Veteran's claim under the new criteria that went into effect February 7, 2021. As of February 7, 2021, under the amended criteria, Diagnostic Code 5055 (knee, resurfacing or replacement (prosthesis)) notes that at the conclusion of the 100 percent evaluation period, a 60 percent rating is available for chronic residuals consisting of severe painful motion or weakness in the affected extremity; intermediate degrees of residual weakness, pain or limitation of motion should be rated by analogy to diagnostic codes 5256, 5261, or 5262; and the minimum evaluation for total replacement is 30 percent. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the amendments did not change the criteria under Diagnostic Codes 5256, 5258, 5259, 5260, or 5261. Under DC 5256 (knee, ankylosis of), a 60 percent rating is available for extremely unfavorable symptoms, in flexion at an angle of 45 degrees or more; a 50 percent rating is available for in flexion between 20 and 45 degrees; a 40 percent rating is available for in flexion between 10 and 20 degrees; and a 30 percent rating is available for favorable angle in full extension, or in slight flexion between zero and 10 degrees. Under DC 5260, limitation of flexion of leg with flexion limited to 60 degrees warrants a zero percent rating; with flexion limited to 45 degrees warrants a 10 percent rating; with flexion limited to 30 degrees warrants a 20 percent rating; and with flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, limitation of extension of leg with extension limited to 5 degrees warrants a zero percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. Flexion of the knee to 140 degrees is considered full, and extension to 0 degrees is considered full. 38 C.F.R. § 4.71a, Plate II. Under the revised criteria, DC 5262, impairment of tibia and fibula: (1) medial tibial stress syndrome (MTSS), or shin splints: a zero percent rating is warranted for MTSS requiring treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted for MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted for MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating is warranted for MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. (2) For malunion of tibia and fibula evaluate under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. (3) For nonunion of tibia and fibula, with loose motion, requiring brace warrants a 40 percent rating. 38 C.F.R. § 4.71a, DC 5262. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), the United States Court of Appeals for Veterans Claims (Court) held that in cases where the record reflects that the appellant has multiple problems due to a service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. In this case, during the Veteran's March 2021 VA examination for knee conditions, the VA examiner noted recurrent subluxation and knee instability along with her total replacement of the right knee. She was prescribed a cane to assist with locomotion. Her initial range of motion (ROM) measurements were from zero to 110 degrees for flexion and full range of motion for extension. There was evidence of pain during flexion for active and passive motion, but it did not result in functional loss. Repetitive use testing was performed and did not result in additional functional loss. No tibial or fibular impairment was noted. In an accompanying VA examination for scars, the VA examiner noted that the Veteran's right knee scar from her operation was neither painful nor unstable. The Board notes that the March 2021 VA examination was conducted prior to the end of the Veteran's temporary 100 percent rating for her right knee replacement under 38 C.F.R. § 4.30. Additionally, it was performed by a pediatrician whose qualifications the Veteran and her representative questioned. Accordingly, the Board lends the examination only limited probative value. During the Veteran's July 2021 VA examination for knee conditions, the VA examiner noted a total knee replacement that occurred in 2020, and the Veteran reported that her knee sometimes buckled under him and was unstable. The Veteran also reported severe chronic right knee pain, needing a cane to ambulate, requiring prescription medication to treat her pain, and that her knee would sometimes lock up. She reported flare-ups of her condition when her pain would become 10/10 in severity, usually 3 day per week, and it was often brought on by prolonged weight bearing. The examiner noted that the added pain from flare-ups limited the Veteran's ROM to 40 degrees for flexion but did not affect extension. The examiner found that the right knee condition prevented the Veteran from walking more than 50 yards, standing for more than 5 to 10 minutes, and she could not perform more than light physical activity. Her initial ROM measurements were as follows: flexion from zero to 80 degrees, with pain, and full extension without pain. These measurements were the same for weight bearing and non-weight bearing. Passive range of motion was the same as active. The Veteran's pain was present during weight-bearing, active motion, and passive motion, but it did not result in functional loss. There was evidence of localized tenderness or pain on palpation of the joint. Repetitive use testing was performed, but it did not result in additional loss of ROM. The right knee was negative for ankylosis or crepitus. The Board finds the evidence is in favor of finding that the Veteran's right knee disability symptoms have resulted in chronic residuals consisting of severe painful motion or weakness in the affected extremity. During the July 2021 VA examination, the Veteran was positive for instability in her right knee, which she reported not only buckled under her occasionally but also locked up. She also reported chronic 9/10 pain that increased to 10/10 during flare-ups. The Veteran was prescribed a cane to assist with ambulation, and her flexion was limited to 80 degrees or 40 degrees during flare-ups. While these symptoms would not entitle her to a higher disability rating under DCs 5256, 5261, or 5262, the Board finds that her overall disability picture is commensurate with the level of disability contemplated by a 60 percent disability rating under DC 5055. Based on these facts, the Board finds the preponderance of the evidence is in favor of granting a 60 percent disability rating, which is the maximum under DC 5055, and no higher rating is available under the other applicable DCs. Next, the Board notes that while the VA examination providing evidence of the symptoms demonstrating entitlement to a 60 percent rating was not conducted until July 2021, it is assigning the increased rating effective April 1, 2021, the day the Veteran's temporary total disability rating under 38 C.F.R. § 4.30 ended. The Board originally ordered the RO to provide an examination for the Veteran's post-operation right knee disability in December 2020. However, the RO did not substantially comply with the Board's remand directives until the July 2020 VA examination. It would be unfair to penalize the Veteran for the RO's actions. Therefore, the effective date will be the date that would have been assigned if the Veteran had been provided a timely VA examination that reflected the same findings. The Board notes that, prior to the total knee replacement, separate evaluations were in effect for right knee arthritis and instability. Given that the right total knee replacement has occurred, and the arthritis diagnosis has changed, there is no basis for a post-replacement separate evaluation for instability in the present case. Accordingly, the Veteran's claim for an increased rating her right total knee replacement disability is granted, and a 60 percent disability rating is assigned effective April 1, 2021. As this is the maximum rating available under the applicable diagnostic codes, and it has been assigned at the earliest possible effective date, the Board considers this a complete grant of the benefits sought on appeal. REASONS FOR REMAND 1. Entitlement to TDIU is remanded. The Board finds that the evidence of record raises the issue of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). During the Veteran's July 2021 VA examination for miscellaneous conditions, the examiner noted that the Veteran was unemployed, and her right knee condition caused functional impairment that would affect her ability to work. There is no evidence of record documenting when the Veteran was last gainfully employed or of her work history, nor have efforts been made to clarify this. Therefore, the Board finds that this issue must be remanded for additional development. The matters are REMANDED for the following action: Send the Veteran a notice letter advising her about what is needed to substantiate a claim for TDIU. Request that she provide a detailed current accounting of her relevant work history, including by completing and returning VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. She must list all her prior employment to include specific dates of employment and the employer's addresses. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.