Citation Nr: 21069085 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 09-46 089 DATE: November 17, 2021 ORDER Entitlement to an increased rating of 60 percent since August 1, 2016, for right total knee replacement (previously rated as traumatic arthritis and instability) is granted. Entitlement to an increased rating above 10 percent prior to June 2, 2015, for right knee arthritis with limitation of motion (flexion) is denied. Entitlement to an increased rating of 10 percent prior to June 2, 2015, for right leg limitation of extension is granted. Entitlement to a separate rating of 20 percent prior to June 2, 2015, for the right knee meniscus condition is granted. FINDINGS OF FACT 1. Since August 1, 2016, the Veteran's right total knee replacement has manifested in chronic residuals of severe painful motion or weakness in the right lower extremity (consistent with a 60 percent rating under Diagnostic Code [DC] 5055). 2. Prior to June 2, 2015, the Veteran's right knee arthritis manifested in limitation of flexion most closely approximating the 10 percent rating criteria under DC 5260. 3. Prior to June 2, 2015, the Veteran's right knee arthritis manifested in limitation of extension most closely approximating the 10 percent rating criteria under DC 5261. 4. Prior to June 2, 2015, the Veteran's right knee arthritis manifested in a meniscus condition most closely approximating the 20 percent rating criteria under DC 5258. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 60 percent, but no higher, since August 1, 2016, for right total knee replacement have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC's 5010-5055 (2018). 2. The criteria for entitlement to an increased rating above 10 percent prior to June 2, 2015, for right knee arthritis with limitation of motion (flexion) have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC's 5010-5055 (2018). 3. The criteria for entitlement to an increased rating of 10 percent prior to June 2, 2015, for right leg limitation of extension have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC's 5010-5055 (2018). 4. The criteria for entitlement to a separate rating of 20 percent prior to June 2, 2015, for the right knee meniscus condition have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC's 5010-5055, DC 5258 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from November 1975 to January 1996. This appeal stems from an October 2007 VA Form 21-526 claiming an increased rating for the right knee, which was originally decided by the Agency of Original Jurisdiction (AOJ) in a July 2008 Rating Decision. In a January 2013 Decision, the Board: remanded: (1) entitlement to an increased rating above 10 percent for traumatic arthritis of the right knee with limitation of motion; and (2) entitlement to an increased rating above 10 percent for right knee instability. In a February 2014 Decision, the Board denied: (1) entitlement to an increased rating above 10 percent for traumatic arthritis of the right knee; (2) entitlement to an increased rating above 10 percent for right knee laxity; and (3) entitlement to a compensable rating for right knee scars. In an October 2014 Joint Motion for Partial Remand (JMPR), the U.S. Court of Appeals for Veterans Claims (Court) vacated and remanded the parts of the February 2014 Board Decision regarding: (1) entitlement to an increased rating above 10 percent for traumatic arthritis of the right knee with limitation of motion; and (2) entitlement to an increased rating above 10 percent for right knee instability. However, the October 2014 JMPR did not disturb the February 2014 Board denial of entitlement to a compensable rating for right knee scars. In a March 2015 Decision, the Board remanded: (1) entitlement to an increased rating above 10 percent for traumatic arthritis of the right knee with limitation of motion; and (2) entitlement to an increased rating above 10 percent for right knee instability. In July 2016, the Veteran testified at a Board Central Office Hearing before the undersigned Veterans Law Judge. In a June 2017 Decision, the Board, in pertinent part, remanded: (1) entitlement to an increased rating above 10 percent for traumatic arthritis of the right knee with limitation of motion prior to June 2, 2015; (2) entitlement to an increased rating above 10 percent for right knee instability prior to June 2, 2015; (3) entitlement to an initial compensable rating for right leg limitation of extension from January 30, 2013, to June 2, 2015; and (4) entitlement to an increased rating above 30 percent for right total knee replacement since August 1, 2016. In a May 2019 Decision, the Board, in pertinent part, denied: (1) entitlement to an increased rating above 30 percent for right total knee replacement since August 1, 2016; (2) entitlement to an increased rating above 10 percent for right knee arthritis prior to June 2, 2015; (3) entitlement to an increased rating above 30 percent for right knee instability prior to June 2, 2015; and (4) entitlement to a compensable rating for right knee scar. In a December 2019 JMPR, the Court, in pertinent part, vacated and remanded the parts of the May 2019 Board Decision regarding: (1) entitlement to an increased rating above 30 percent for right total knee replacement since August 1, 2016; and (2) entitlement to an increased rating above 10 percent for right knee arthritis prior to June 2, 2015. However, the December 2019 JMPR did not disturb the May 2019 Board denials of: (1) entitlement to an increased rating above 30 percent for right knee instability prior to June 2, 2015; and (2) entitlement to a compensable rating for right knee scar. In a June 2020 Decision, the Board, in pertinent part, denied: (1) entitlement to an increased rating above 30 percent for right total knee replacement since August 1, 2016; (2) entitlement to an increased rating above 10 percent for right knee arthritis prior to June 2, 2015; and (3) entitlement to a compensable rating for right leg limitation of extension from January 30, 2013, to June 2, 2015. In a June 2021 JMPR, the Court vacated and remanded the June 2020 Board Decision to the extent that it denied entitlement to: (1) a disability rating greater than 30 percent subsequent to August 1, 2016, for a right total knee arthroplasty (TKA); (2) a disability rating greater than 10 percent prior to June 2, 2015, for right knee arthritis; and (3) a compensable disability rating from January 30, 2013, to June 2, 2015, for right leg limitation of extension. 1. Entitlement to an increased rating above 30 percent since August 1, 2016, for right total knee replacement (previously rated as traumatic arthritis and instability) The Veteran's right knee disability is currently rated, in pertinent part, as: (a) limitation of extension under DC 5261 (0 percent from January 30, 2013, through June 1, 2015); (b) limitation of flexion under DC 5260 (10 percent from January 9, 1996, through June 1, 2015); and (c) residuals of total knee replacement under DC 5055 (100 percent from June 2, 2015, through July 31, 2016, and 30 percent since August 1, 2016). See February 2021 Codesheet; 38 C.F.R. § 4.71a, DC's 5055, 5260, 5261. The Veteran seeks an increased disability rating. Under DC 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. 38 C.F.R. § 4.71a, DC 5055. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DC's 5256, 5260, 5261, or 5262. A 30 percent rating is warranted as a minimum evaluation for total replacement. 38 C.F.R. § 4.71a, DC 5055. DC's 5260 and 5261 pertain to limitation of knee motion. 38 C.F.R. § 4.71a, DC's 5260, 5261. Notably, DC 5262 pertains to nonunion or malunion of the tibia and fibula, neither of which is demonstrated by the evidence in this case; hence, this DC will not be discussed further. A normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. A limitation of leg flexion allows for a 10 percent evaluation when it is limited to 45 degrees; a 20 percent evaluation when it is limited to 30 degrees; and a 30 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. A limitation of leg extension is assigned a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5261. A 30 percent evaluation is allowed when extension is limited to 20 degrees; a 40 percent evaluation is allowed when extension is limited to 30 degrees; and a 50 percent evaluation is allowed when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Notably, knee evaluations can also be assigned based on ankylosis or genu recurvatum, but as the Veteran has not at any time been found to have ankylosis or genu recurvatum of the right knee, these DCs are not applicable and will not be further discussed. 38 C.F.R. § 4.71a, DCs 5256, 5263. As stated, DC 5055 provides a total rating (100 percent) for one year following prosthetic replacement of a knee joint. In this case, that requirement has been fulfilled, as a total rating has been assigned for the one-year period following the June 2, 2015, right total knee replacement surgery. 38 C.F.R. § 4.71a, DC 5055. Additionally, as stated above, following a temporary 100 percent rating immediately following a total knee replacement, there is no DC pertaining to the knee or leg that allows ratings in excess of 60 percent. 38 C.F.R. § 4.71a, DC's 5256-5263. Thus, 60 percent is the maximum schedular rating available for the total right knee replacement following the one-year recovery period; a rating in excess of 60 percent would violate the "amputation rule," which prohibits a combined rating for musculoskeletal disabilities that would be in excess of that provided for amputation at the level of the subject joint. 38 C.F.R. §§ 4.68, 4.71a, DC's 5055, 5256, 5257, 5260, 5261, 5262. In this case, the Board finds that, since August 1, 2016, the Veteran's right total knee replacement has manifested in chronic residuals of severe painful motion or weakness in the right lower extremity (consistent with a 60 percent rating under DC 5055). Although several VA examiners have checked the box indicating that the surgery residuals are merely intermediate degrees of residual weakness, pain, and limitation of motion (consistent with a 30 percent rating under DC 5055), several examiners have consistently documented the Veteran's reports of residual symptoms and functional loss more closely approximating chronic residuals of severe painful motion or weakness in the right lower extremity (consistent with a 60 percent rating under DC 5055). See August 2016, October 2017, November 2018, February 2021, and April 2021 VA knee and lower leg conditions examinations. Specifically, the Veteran reported such severe painful motion and weakness that he must consistently take pain medication and he consistently has decreased mobility resulting in difficulties with activities of daily living (including ambulation, balance, bending, lifting, squatting, walking, standing, sitting, climbing stairs and ladders, running, and pivoting) requiring consistent use of a cane; the Board considers these residuals to be chronic because they have lasted throughout the appeal period and to be severe because they require constant medication for pain management and affect numerous activities of his daily living that decrease his quality of life. As such, a 60 percent rating under DC 5055 is warranted, which precludes additional analogous ratings under DC's 5256, 5260, 5261, or 5262 since August 1, 2016. 38 C.F.R. § 4.71a, DC 5055. Notably, a rating higher than 60 percent is precluded by the "amputation rule" because neither the medical evidence of record nor the Veteran has indicated that his right knee functioning is so diminished that amputation with prosthesis would equally serve him. See August 2016, October 2017, November 2018, February 2021, and April 2021 VA knee and lower leg conditions examinations. Finally, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Veteran has been granted herein the maximum schedular evaluation available for residuals of his total knee replacement since August 1, 2016. In Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable; thus, the provisions of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca are not applicable in this case. 2. Entitlement to an increased rating above 10 percent prior to June 2, 2015, for right knee arthritis with limitation of motion (flexion) As stated above, the Board has granted herein a 60 percent rating under DC 5055 since August 1, 2016, which precludes additional analogous ratings under DCs 5256, 5260, 5261, or 5262 since August 1, 2016. 38 C.F.R. § 4.71a, DC 5055. However, as directed by the Court, the Board must still analyze whether increased ratings for the right knee are available prior to June 2, 2015. Specifically, in the June 2021 JMPR, the Court directed the Board to address: (a) whether VA needs to obtain updated treatment records; (b) medical evidence throughout the entire appeal period (since the initial claim in 2007); and (c) whether a separate rating for a meniscus condition under DC 5258 constitutes improper pyramiding pursuant to the holding in Lyles v. Shulkin, 29 Vet. App. 107, 117-19 (2017). In Lyles, the Court explained that a separate rating for a meniscus condition, in addition to a rating based on limitation of motion for the knee, may constitute improper pyramiding where the functional loss manifestations of the meniscus condition were already compensated by the rating for the limitation of motion. This improper pyramiding would occur where the rating for limitation of motion has been elevated beyond the mechanical application of the rating criteria because of additional functional loss manifestations due to the meniscus condition and 38 C.F.R. §§ 4.40, 4.45, 4.59. However, "where manifestations of a musculoskeletal disability causing additional functional limitation have not resulted in elevation of the evaluation pursuant to the holding in DeLuca, those manifestations have not yet been compensated for separate evaluation and pyramiding purposes." DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). Regarding the first directive, the Court directed the Board to address the Veteran's contention that there were outstanding VA treatment records subsequent to October 2017 (see January 3, 2020, Third Party Correspondence). However, that contention has subsequently become moot because several packets of VA treatment records have since been associated with the claims file (in February 2018, July 2020, November 2020, December 2020, January 2021, February 2021, and March 2021). Regarding the second and third directives, the Board finds that: (a) prior to June 2, 2015, the Veteran's right knee arthritis manifested in limitation of flexion most closely approximating the 10 percent rating criteria under DC 5260; (b) prior to June 2, 2015, the Veteran's right knee arthritis manifested in limitation of extension most closely approximating the 10 percent rating criteria under DC 5261; and (c) prior to June 2, 2015, the Veteran's right knee arthritis manifested in a meniscus condition most closely approximating the 20 percent rating criteria under DC 5258. Regarding the 10 percent ratings under DC 5260 and DC 5261, the Board cannot apply the findings from VA examinations after the June 2, 2015, knee replacement because those subsequent examiners were no longer able to examine the Veteran's anatomical knee. Notably, prior to June 2, 2015, the Veteran was afforded VA examinations in August 2008, August 2012, July 2013, and May 2015; however, because these examinations are inconsistent with the holdings in Correia and Sharp, the Board will use the most favorable findings among them and apply them throughout the entire appeal period for the Veteran's benefit. Correia v. McDonald, 28 Vet. App. 158 (2016) (when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). In that regard, the August 2008 examiner found, in pertinent part: right leg flexion to 90 degrees, with an additional 5 degrees of limitation due to pain, fatigue, weakness, lack of endurance, and incoordination after repetitive use; right leg extension to 0 degrees; right knee edema without effusion, weakness, tenderness, redness, heat, guarding of movement, or subluxation; and right knee meniscus testing within normal limits. The August 2008 examiner also documented the Veteran's reports of: weakness, stiffness, swelling, giving way, lack of endurance, locking, pain, limitation of motion, and increasing pain (flare ups) depending on physical activity. A January 2011 VA outpatient record show range of motion from 10 to 90 degrees. A February 2012 private treatment record also indicates that the Veteran's extension was limited to 10 degrees. The August 2012 examiner found, in pertinent part: right leg flexion to 90 degrees and right leg extension to 0 degrees (with additional limitation due to pain, fatigue, weakness, lack of endurance, and incoordination after repetitive use); right knee tenderness and genu varum without genu recurvatum, edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, locking pain, crepitus, or ankylosis; and right knee meniscus and stability testing within normal limits. The August 2012 examiner also documented the Veteran's reports of: weakness, swelling, giving way, lack of endurance, deformity, pain, limitation of motion, and flare ups precipitated by physical activity as often as three times per month and lasting for five days at a time, difficulty with bending and standing for extended periods, and difficulty with standing and walking. The July 2013 examiner found, in pertinent part: right leg flexion to 105 degrees and right leg extension to 0 degrees (with no additional range of motion loss after repetitive use testing); no reduction in muscle strength; no right knee meniscus conditions; pain on movement, disturbance of locomotion, and interference with sitting; and regular use of a knee immobilizer for stability, pain, and balance. The July 2013 examiner also documented the Veteran's reports of flare ups described as severe pain in the front and side of the knee when standing, walking, and running and the inability to walk without assistance of a cane. The examiner estimated that the additional range of motion loss during flare-ups and due to pain, weakness, fatigability, and incoordination was approximately 10 degrees during right knee flexion. The May 2015 examiner found, in pertinent part: right leg flexion to 50 degrees and extension to 0 degrees with 4 plus effusion and exquisite tenderness of the knee with very limited range of motion; walks with a limp; additional limitation due to pain, fatigue, weakness, lack of endurance, and incoordination after repeated use; additional limitation due to pain, fatigue, and weakness during flare ups; no reduction in muscle strength, muscle atrophy, or ankylosis; no instability; recurrent swelling two to three times per month; right meniscal tear with frequent episodes of locking (twice per year when laying down), joint pain (10 out of 10 on pain scale), and effusion (two to three times per month); and constant use of a brace and cane with limited mobility including standing and travelling. The May 2015 examiner also documented the Veteran's reports of: pain, torn meniscus, swelling multiple times per month, flare ups with physical activity, occasional incapacitation about three times per year described as having to stay off the right knee for a few hours, and increased pain with weightbearing. Assigning the most favorable findings to the rating criteria discussed above, the limitation of flexion (most severe in the May 2015 examination) most closely approximates the 10 percent criteria; although the 10 percent criteria require limitation of flexion to 45 degrees and the May 2015 examiner found limitation of flexion to 50 degrees, the Board has added extra range of motion loss for when the Veteran experiences flare ups. Notably, the July 2013 examiner was the only examiner prior to June 2, 2015, that estimated additional range of motion loss due to flare ups at 10 extra degrees; as such, the Board defers to that finding, as it is the most favorable, which makes the most favorable estimated range of motion loss during flare ups to be 40 degrees. Because the 40 degrees finding is closer to the criteria for the 10 percent rating (only 5 degrees away) than to the criteria for the 20 percent rating (10 degrees away), the Board finds that the 10 percent rating is the most appropriate. 38 C.F.R. § 4.71a, DC 5260. Assigning the most favorable findings to the rating criteria discussed above, the limitation of extension (most severe in the January 2011 and February 2012 treatment records) most closely approximates the 10 percent rating criteria (for extension limited to 10 degrees). Although flare ups are also reported, the July 2013 examiner was the only examiner prior to June 2, 2015, that estimated additional range of motion loss due to flare ups at 10 extra degrees; however, that examiner specified that the additional 10 degrees loss was for right leg flexion, not extension. As such, the Board finds that the 10 percent rating is the most appropriate. 38 C.F.R. § 4.71a, DC 5261. Lastly, assigning the most favorable findings to the rating criteria under DC 5258 for the meniscus condition (most severe in the May 2015 examination), the Board finds that it most closely approximates the 20 percent (maximum schedular) rating criteria (requiring frequent episodes of locking, pain, and joint effusion, which the May 2015 examiner found). 38 C.F.R. § 4.71a, DC 5258. In sum, applying the most favorable findings to the entire appeal period prior to June 2, 2015, the Board: (a) denies entitlement to an increased rating above 10 percent prior to June 2, 2015, for right knee arthritis with limitation of motion (flexion); (b) grants entitlement to an increased rating of 50 percent prior to June 2, 2015, for right leg limitation of extension; and (c) grants entitlement to a separate rating of 20 percent prior to June 2, 2015, for the right knee meniscus condition. 3. Entitlement to a compensable rating prior to June 2, 2015, for right leg limitation of extension This issue is granted for the reasons and bases discussed above. 4. Entitlement to a separate rating prior to June 2, 2015, for the right knee meniscus condition (Continued on the next page) 5. This issue is granted for the reasons and bases discussed above. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.