Citation Nr: 21068157 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 09-36 385 DATE: November 9, 2021 ORDER Entitlement to a rating in excess of 60 percent for total right knee replacement is denied. Entitlement to a separate 10 percent rating, but no higher, for right knee replacement from April 1, 2013 is granted. FINDINGS OF FACT 1. The Veteran's service-connected right total knee replacement was manifested by severe chronic pain, decreased motion, and weakness. 2. From April 1, 2013, the competent and credible evidence of record demonstrates slight instability of the right knee as to warrant a separate disability rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 60 percent for total right knee replacement have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 2. The criteria for a separate 10 percent rating for instability of the right knee from April 1, 2013 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1979 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2011. A copy of the transcript is associated with the transcript. In March 2016, the Board denied a rating in excess of 30 percent for a total right knee replacement to the United States Court of Appeals for Veterans Claims (Court). The Veteran appealed this decision. In April 2017, pursuant to a Joint Motion for Partial Remand (JMR), the Court set aside the Board's March 2016 decision. The Court also returned the case to the Board for further proceedings consistent with the JMR requiring the Board to provide adequate reasons and bases addressing instability as a possible basis for assigning a rating for the right knee disability in addition to a rating based on knee replacement under Diagnostic Code 5055. The case was again remanded for further development in September 2017, December 2017, December 2019, April 2020, and June 2021. In a December 2018 rating decision, the RO increased the Veteran's evaluation for right knee replacement to 60 percent effective April 1, 2013. The matter returns for appellate consideration. Increased Ratings 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. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that limited motion. Entitlement to a rating in excess of 60 percent for total right knee replacement is denied. The Veteran underwent a right total knee replacement on February 22, 2012, for which she was subsequently granted a 100 percent disability rating, effective February 22, 2012. Following the initial one-year post-implantation period, the Veteran was assigned a 60 percent disability rating for her residuals pursuant to Diagnostic Code 5055, effective April 1, 2013. She contends that she is entitled to a rating in excess of 60 percent for her total right knee replacement residuals. Total knee replacements are rated under 38 C.F.R. § 4.71a, and Diagnostic Code 5055. Diagnostic Code 5055 provides for a total rating for the first year following implantation of a knee replacement (prosthesis); a 60 percent rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a minimum rating of 30 percent for intermediate degrees of residual weakness, pain, or limitation under the appropriate diagnostic code for less severe residuals. The Board notes that the "amputation rule" precludes the assignment of a rating in excess of 60 percent for a disability of the knee. The "amputation rule" provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. 38 C.F.R. § 4.68. Amputations of the lower extremity are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5160-5173. Diagnostic Code 5163 allows for a 60 percent rating for amputation of the leg with a defective stump and thigh amputation recommended. Diagnostic Code 5164 allows for a 60 percent rating for amputation of the leg not improvable by prosthesis controlled by natural knee action. For a rating higher than 60 percent, there must be amputation up to the upper third of the thigh. 38 C.F.R. § 4.71a, Diagnostic Code 5161. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course 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. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Notably, however, changes to the pertinent rating criteria following the February 7, 2021 amendments pertains to the period for which a temporary 100 percent rating is warranted under Diagnostic Code 5055. Specifically, under the pre-amended criteria, a 100 percent rating was assigned for one year following implantation of a prosthesis. Under the post-amended criteria, this temporary 100 percent rating is available for four months following such implantation. The pertinent Diagnostic Codes addressing amputation of the lower extremity, Diagnostic Codes 5161 through 5265, remain unchanged. Thus, as the Board is considering whether a higher rating is warranted for her right total knee replacement from April 1, 2013, the regulation changes effective February 7, 2021 do not affect the Board's analysis. Similarly, prior to February 7, 2021, Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee, and assigns a 10 percent disabling for a slight impairment, 20 percent disabling for a moderate impairment, and 30 percent disabling for a severe impairment. Diagnostic Code 5257 is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Under the post-amended criteria, Diagnostic Code 5257 provides ratings for patellar instability and recurrent subluxation or lateral instability. However, as there is no evidence of patellar instability, such aspect of Diagnostic Code 5257 is inapplicable. For recurrent subluxation or lateral instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistance device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Turning to the evidence of record, the Board notes that private treatment records in 2013 demonstrated the Veteran's reports of an August 2013 motor vehicle accident and her ability to ambulate with no limp and get on and off a chair. Her right knee was noted to be in overall good alignment with moderate lateral laxity and 0 to 90 degrees of flexion with a fixed firm endpoint with some periarticular tenderness. See June 2015 Medical Treatment Record. A May 2015 VA examination noted the Veteran denied current treatments and reported objective symptoms of painful motion and stiffness particularly following prolonged periods of sitting and walking. She denied any significant flares as her symptoms were primarily a chronic daily pattern. An objective evaluation found flexion limited to 110 degrees, with extension limited to two degrees. While there was pain on examination, motion was further limited by such pain or by repetitive motion. Her right knee was stable with palpable pain on the medial joint line area. There was no reduction in muscle strength, ankylosis of the right knee, or any other tibial and/or fibular impairment. The examiner remarked that the Veteran's right knee had been stable since her replacement surgery in 2012. VA treatment records in January 2014 evidenced complaints for chronic knee pain with slow symmetric gait and difficulty getting in and out of the shower. Treatment records in June and July 2016 evidenced mild laxity in the right knee, the Veteran's reports of a fall accident earlier in the year, and complaints of numbness. An October 2017 VA examination showed range of motion testing demonstrated flexion limited to 110 degrees and extension to 0 degrees, with evidence of pain on flexion and localized tenderness. Notably, a bilateral joint stability test was performed and was unremarkable. The examiner noted residuals of the February 2012 total knee replacement to include intermediate degrees of residual weakness, pain, or limitation of motion. Use of assistive devices was not noted. In a November 2017 statement, the Veteran reported that the October 2017 VA examiner did not perform stability testing. She indicated that the examiner attempted to perform hammer reflex testing but stopped the examiner from doing so due to her extreme knee pain. During a February 2018 VA examination, the Veteran described pain of seven to eight intensity (out of ten), which she reported kept her up at night and was causing limping and falling. No repetitive use testing could be performed at the examination because the Veteran expressed fear of resulting pain, and the examiner could not test the knee for instability for the same reason. Based on the findings presented, the examiner was unwilling to provide an assessment of severity of disability with repetitive use or upon flare-ups without speculation. However, the examiner did assess that the Veteran had chronic residuals of severe painful motion or weakness. This assessment was based in part on the Veteran's demonstration at the examination of inability to walk for any distance on the knee, a limping gait, and holding onto her husband for stability. The examiner also observed neuropathy and foot drop. VA treatment records in 2018 continued to reflect complaints for knee pains, especially during shifts in weather, but also the Veteran's ability to ambulate with mild limps and without assistive devices. Particularly, a June 2018 treatment record reports stability in both knees and a July 2018 emergency room record documents a fall on the right side but the Veteran's ability to ambulate to the bathroom without any difficulty. VA treatment records in February 2019 reflected the Veteran's reports for occasional falls but a July 2019 record noted no history of falls within the past 3 months. A December 2019 VA examination demonstrated a separate diagnosis for right knee instability. The Veteran reported continued pain and inability to bend or squat as well as increased knee pain during weather changes. Range of motion demonstrated flexion limited to 115 degrees and extension to 0 degrees, with evidence of pain and tenderness to palpitation. Additional functional loss was noted in the form of pain during repetitive use testing and pain and fatigue during flare ups. Joint stability testing was performed, and instability was noted in the right knee. Later in the examination, the examiner indicated there was no evidence of instability in the right knee but that the right total knee replacement in 2012 resulted in chronic residuals consisting of severe painful motion or weakness. Use of assistive devices was not noted. There was objective evidence of pain in passive range of motion and non-weight bearing testing. A December 2019 radiological report demonstrated unremarkable results in the right knee. In a February 2020 statement through her representative, the Veteran asserted that symptomatology associated with her service-connected condition, including the separate rating for instability of the right knee prior to February 12, 2012, presents a greater degree of impairment, to include incapacitating attacks of pain, severe limitation of motion, functional loss due to weakness, fatigability, incoordination, or pain on movement, and marked interference with daily activities. A July 2020 VA examination reflected the Veteran's reports of right knee swelling and pain. She indicated that she had fallen twice in her home within the last year due to difficulty raising her feet. Upon range of motion testing, the examiner noted good range of motion and strength upon repeated use over time with no evidence of pain, swelling, redness, or warmth; however, the Veteran needed urging in flexing her right knee to 100 degrees, at which time she reported memory loss and became tearful. The examination also demonstrated that joint stability testing was not performed because the Veteran was reportedly upset and tearful. Lastly, an August 2021 VA examination demonstrated the Veteran's reports of difficulty tying her shoes. Range of motion measurements evidenced flexion limited to 45 degrees during active testing and 55 degrees during passive testing and extension to 0 degrees upon both measurements. There was evidence of pain during active range of motion testing but no functional loss. Additional functional loss was not noted upon repetitive use, repeated use over time, or flare ups. There was also no evidence of ankylosis, joint instability, or tibial/fibular impairment. The examiner noted the Veteran's reports for right knee instability and multiple falls due to such but indicated that the evidence did not substantiate her claim because there was no evidence of instability. After a review of the evidence, the Board notes that the Veteran's total right knee replacement residuals consist of pain, decreased motion, and weakness from April 1, 2013. The Veteran is currently in receipt of a 60 percent evaluation for this period; this is the highest evaluation afforded under the Diagnostic Code, following the period in which a 100 percent rating is warranted for post-implantation of the prosthesis. The Board has considered whether an evaluation greater than 60 percent may be granted under other diagnostic codes but finds that an evaluation greater than 60 percent cannot be warranted from April 1, 2013. See 38 C.F.R. § 4.68. The medical evidence does not reflect manifestations approximating loss of the upper third of the thigh. See 38 C.F.R. § 4.71a, Diagnostic Codes 5161, 5160. First, VA examiners specifically noted that the Veteran's right knee disability is not so diminished in function that amputation with prosthesis would serve her equally. Second, the medical evidence does not show the Veteran lost use of her right extremity above or below the knee. She remains able to ambulate with the right lower extremity even without assistive devices. As relevant here, amputation of the leg at the knee warrants a 60 percent rating under Diagnostic Code 5162. 38 C.F.R. § 4.71a. As the Veteran is already in receipt of a 60 percent rating for her right knee, additional ratings for the knee itself are not permitted. More importantly, which will be discussed further in this decision, the parties to the April 2017 JMR agreed that the prior Board decision failed to discuss whether 38 C.F.R. § 3.105 (d) applied to instability and whether such instability is consistent with a residual of the right knee replacement. Particularly, the parties noted that the Veteran was in receipt of service-connected disability compensation for instability of the right knee, effective April 2008, four years prior to the February 2012 right knee replacement surgery; therefore, instability of the right knee predated the right knee replacement surgery and it was unclear how the instability could be a residual of such surgery. Consequently, the Veteran's compensation for instability of the right knee was terminated on February 22, 2012, date of right knee replacement, at which time compensation continued under Diagnostic Code 5055 following the period of convalescence for that procedure. As such, service connection for instability of the right knee was essentially severed. In this regard, the Board finds that instability of the right knee warrants a separate rating under Diagnostic Code 5257 from April 1, 2013 and is not a residual of the total right knee replacement. In support of this conclusion, the Board directs attention to the VA examinations, from April 1, 2013, which do not demonstrate instability as a residual of total knee replacement. In fact, they note that chronic residuals consist of severe painful motion or weakness and do not mention instability as an additional residual. Although findings in the October 2014, May 2015, October 2017, and August 2021 VA examinations were negative for right knee instability, VA treatment records from April 1, 2013 demonstrate mild lateral laxity, mild limps, some history of "falling" and the Veteran's complaints that her right knee gives out sporadically. Furthermore, the December 2019 VA examination demonstrated a separate diagnosis for right knee instability. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran meets the criteria under Diagnostic Codes 5257, under the pre-amended criteria, from April 1, 2013 for a separate, compensable rating under this code for right knee instability. The Board determines the severity of the Veteran's instability to be slight, as evidenced by her ability to ambulate without assistive devices and negative objective findings for instability in most of the VA examinations. Finally, to the extent that there are deficiencies in the VA examinations during this period, the Board notes that 60 percent is the maximum schedular rating that may be granted for the right knee, without demonstrating amputation or the functional equivalent of amputation. As each of the VA examiners found that the Veteran's right knee disability was not manifested by functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis, and the Veteran has not contended otherwise, the Board finds that any such errors in the VA examinations are harmless. Furthermore, as the Veteran is in receipt of the maximum schedular rating for her right knee disability under the limitation of motion criteria, any deficiencies in the VA examinations of record concerning range of motion testing described in the final sentence of 38 C.F.R. § 4.59, or assessment of additional functional impairment on flare-up is rendered harmless. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As such, additional development regarding the right knee disability would not result in any further benefit to the Veteran and would cause an unnecessary delay in the adjudication of the case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Based on the foregoing, the Board finds that a rating in excess of 60 percent for total right knee replacement is not warranted. However, the Board does find that a separate compensable rating of 10 percent, but no higher, for right knee instability under Diagnostic Code 5257 is warranted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. at 49. Extraschedular Consideration As noted above, Diagnostic Code 5055 establishes a maximum 60 percent rating for total knee replacements (prosthesis). Thus, the Veteran is currently in receipt of the maximum award possible per the applicable rating criteria from April 1, 2013, and an increased rating may only be granted if entitlement is established on an extraschedular basis. An extra-schedular rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. An extra-schedular rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). With respect to the first prong in Thun, the evidence in this case does not show such an exceptional or unusual disability picture that the available schedular ratings for service-connected total right knee replacement are inadequate. The criteria under which the Veteran's disability is rated are found by the Board to specifically contemplate the Veteran's levels of disability and symptomatology. Although the Veteran is shown to have difficulties with bending, squatting, limitation of motion, and slight instability, these symptoms have been contemplated by the assigned ratings. The Board finds that the criteria for the currently assigned rating reasonably describes the Veteran's disability level and symptomatology. Furthermore, the medical evidence of record does not reflect any hospitalizations for the right knee condition itself, nor does it show that this condition creates marked interference with employment. The July 2020 VA examination does not support a finding that the Veteran's right knee condition impacted her ability to work while the other VA examinations indicate the right knee condition impacts, at worst, the ability to stand or walk long distances or perform physically demanding jobs. There is no indication in the medical evidence of record to show an extra-schedular evaluation is warranted at this time. As such, no unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical. While the Veteran and her representative have raised entitlement to an extraschedular rating for the right knee, specifically to include incapacitating attacks of pain, severe limitation of motion, functional loss due to weakness, fatigability, incoordination or pain on movement, and marked interference with her daily activities, the competent and credible evidence of record does not support such an unusual circumstance as to not be fully contemplated by the rating schedule. See February 2020 Appellate Brief. In sum, there is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. Thus, the Veteran has not carried the burden of demonstrating that her disability is of such a nature that an extraschedular rating is warranted. 38 C.F.R. § 3.321 (b)(1); Thun v. Peake, 22 Vet. App. 111. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.