Citation Nr: 21069432 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-16 715 DATE: November 18, 2021 ORDER From April 1, 2019, entitlement to a rating of 60 percent, but no greater, for total left knee replacement is granted. REMANDED Service connection for an acquired psychiatric disorder as secondary to total left knee replacement is remanded. FINDING OF FACT From April 1, 2019, the Veteran's total left knee replacement is characterized by chronic residuals consisting of severe painful motion or weakness in the affected extremity. CONCLUSION OF LAW From April 1, 2019, the criteria for a disability rating of 60 percent, but no greater, for left total knee replacement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5257-5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from August 1973 to October 1975. This matter is on appeal from a March 2014 rating decision. In August 2016, the Veteran withdrew his prior request for a hearing. This matter was previously remanded in September 2020 and May 2021. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Such inquiry is not to be limited to muscles or nerves. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. A VA examination must address the frequency, duration, characteristics, severity, and/or functional loss during flare-ups, based on all the evidence of record, including statements from the Veteran. Sharp v. Shulkin, 29 Vet. App. 26, 3435 (2017). Rating Criteria Knee Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. 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). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. Diagnostic Code 5055 Under the former regulations, Diagnostic Code 5055 governs knee replacement (prosthesis). 38 C.F.R. § 4.71a. A 100 percent rating is appropriate for 1 year following implantation of prosthesis. Id. A 60 percent rating is appropriate for a total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. A 30 percent rating is the minimum possible rating assignable. Id. Intermediate degrees of residual weakness, pain, or limitation of motion (i.e. a level of disability in between those contemplated by the 30 and 60 percent ratings) are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. Id. Effective February 7, 2021, Diagnostic Code 5055 governs knee resurfacing or replacement (prosthesis). 38 C.F.R. § 4.71a. A 100 percent rating is appropriate for 4 months following implantation of prosthesis or resurfacing. Id. A 60 percent rating is appropriate for a total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. A 30 percent rating is the minimum evaluation, total replacement only. Id. Intermediate degrees of residual weakness, pain, or limitation of motion (i.e. a level of disability in between those contemplated by the 30 and 60 percent ratings) are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. Id. Further, at the conclusion of the 100 percent evaluation period, evaluate resurfacing under diagnostic codes 5256 through 5262; there is no minimum evaluation for resurfacing. The new regulations contain notes applicable to all prosthetic implants and resurfacing. 38 C.F.R. § 4.71a. When an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under diagnostic codes 50515056, an additional rating under § 4.71a may not also be assigned for that joint, unless otherwise directed. Id. (Note 1). Only evaluate a revision procedure in the same manner as the original procedure under diagnostic codes 50515056 if all the original components are replaced. Id. (Note 2). The term "prosthetic replacement" in diagnostic codes 50515053 and 50555056 means a total replacement of the named joint; however, in DC 5054, "prosthetic replacement"' means a total replacement of the head of the femur or of the acetabulum. Id. (Note 3). The 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of the 1-month total rating assigned under § 4.30 following hospital discharge. Id. (Note 4). The 100 percent rating for 4 months following implantation of prosthesis or resurfacing under DCs 5054 and 5055 will commence after initial grant of the 1-month total rating assigned under § 4.30 following hospital discharge. Id. (Note 5). Special monthly compensation is assignable during the 100 percent rating period the earliest date permanent use of crutches is established. Id. (Note 6). Former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. The Federal Circuit has upheld the validity of this regulation. Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339, 1349 (Fed. Cir. 2003). As such, the Board will proceed to adjudicate the Veteran's claim. Evidence Knee The Veteran asserts entitlement to a higher rating for his left knee disability, which he reports becomes increasing symptomatic upon physical activity. The Veteran has been awarded service connection for a left knee disorder. From October 9, 1975, to February 21, 2018, he is rated at 10 percent under Diagnostic Code 5257 for left knee internal derangement. From February 21, 2018, to March 31, 2019, the Veteran is rated at 100 percent under Diagnostic Code 5257-5055 for left knee tricompartmental osteoarthritis with limitation of extension status post left knee total replacement (total left knee replacement). From April 1, 2019, the Veteran is rated at 30 percent under Diagnostic Code 5257-5055 for total left knee replacement. As only the period from April 1, 2019, is on appeal, the Board will consider evidence from April 1, 2019. An August 2019 VA medical record describes the Veteran's left knee as "stable." A March 2020 VA medical record describes the Veteran's left knee as "stable." An April 2020 VA medical record indicates left knee pain. A June 2020 VA medical opinion indicates that the Veteran does not report flareups or functional impairment. A June 2020 VA medical record indicates that the range of motion for the Veteran's left knee is 0-120 and that the left total knee replacement is "in good position." A September 2020 VA medical record describes the Veteran's left knee as "stable." At the September 2020 VA knee examination report indicates that he does not experience flareups. Functional loss is reflected by not being "able to sand for long periods of time." For the left knee, flexion is 0 to 125 degrees and extension is normal. The Veteran can perform repetitive-use testing with at least three repetitions and no accompanying functional loss or loss in range of motion. With repetitive use over time there is no loss in range of motion and no functional loss. Muscle strength is normal. There is no ankylosis. There is no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing is normal. Regarding residuals of the left total knee replacement, there is limitation of motion but there are no chronic residuals consisting of severe painful motion or weakness in the affected extremity. The Veteran occasionally uses a left knee brace. Regarding functional impact, his knee disorder limits "weight bearing for prolonged periods which limit[s] his daily activity." There is no objective evidence of pain on non-weight bearing. Passive range of motion is the same as active range of motion. In the December 2020 VA knee exam, the Veteran "reports only slight pain" for his left knee that can be treated with Tylenol. He has his "own exercise regimen of walking on treadmill, weight machines for upper and lower body." He denies flareups and does not have any functional loss. Flexion is limited to 120 degrees and extension is limited to 40 degrees, but this limitation of motion is described as "[n]ormal for body habitus/age/no clinical significance." The Veteran can perform repetitive-use testing with at least three repetitions and no accompanying functional loss or loss in range of motion. Muscle strength is normal. There is no ankylosis. There is no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing is normal. Regarding residuals of the left total knee replacement, there are no chronic residuals consisting of severe painful motion or weakness in the affected extremity. The examiner indicates that the Veteran's knee disorder does not impact his ability to work. There is no objective evidence of pain during passive range of motion testing or in non-weight bearing. The examiner closes the report by stating that since April 2019 the "trajectory of S/P knee replacement has been an improvement." An August 2021 VA knee examination indicates "[i]ntermittent pain to the [left] knee" and swelling with "[p]rolonged standing and ambulation ...." The Veteran denies flareups. There is no functional loss and no history of recurrent subluxation or lateral instability. Range of motion is 0 to 100 degrees but does not result in functional loss. Passive range of motion is the same. The Veteran can perform repetitive-use testing with at least three repetitions and no accompanying functional loss or loss in range of motion. There is no ankylosis. There is no patellar instability. Regarding residuals of the left total knee replacement, there are intermediate degrees of residual weakness, pain, or limitation of motion, but no chronic residuals consisting of severe painful motion or weakness in the affected extremity. These residuals include "intermittent pain and swelling." The examiner indicates that the left knee disorder does not impact the Veteran's ability to work. Joint stability testing is normal. Analysis From April 1, 2019, entitlement to a rating of 60 percent, but no greater, for total left knee replacement is denied Giving the Veteran the benefit of the doubt, the Board finds flareups characterized by pain, swelling, and the need for medication constitutes evidence of chronic residuals consisting of severe painful motion or weakness. This evidence supports a rating of 60 percent from April 1, 2019. This is the highest available rating for knee replacement following a period of convalescence. A higher rating is not available under Diagnostic Code 5256, 5261, or 5262. For these reasons, the preponderance of the evidence is against a rating in excess of 60 percent for total left knee replacement. REASONS FOR REMAND Service connection for an acquired psychiatric disorder as secondary to total left knee replacement is remanded. The Veteran has reported other disabling manifestations as a consequence of his total left knee replacement. Specifically, in the April 2020 VA 21-0781, the Veteran states that his in-service left knee injury resulted in depression. Thus, remand is warranted for VA to determine whether the Veteran has a psychiatric disability that is a manifestation or secondarily related to his service-connected right knee disability. See Morgan v. Wilkie, 31 Vet. App. 162, 167 (2019) ("VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code."). Additionally, on remand the RO should obtain all relevant VA treatment records dated from May 2021 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from May 2021 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of how whether the Veteran has any depression related to his left knee disorder. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After completing the above steps, provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) and obtain a medical opinion regarding the nature and etiology of any acquired psychiatric disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions. The examiner must diagnose any psychiatric disability found to be present. (a.) The examiner should also provide an opinion as to whether it is at least as likely as not that any psychiatric impairment is proximately due to a left knee disorder. (b.) The examiner should also provide an opinion as to whether it is at least as likely as not that any psychiatric impairment was aggravated beyond its natural progression by a left knee disorder. This must be addressed in a separate opinion from the "proximately due to" opinion. In rendering these opinions, the examiner should consider the Veteran's April 2020 VA 21-0781, describing depression arising from his in-service left knee injury. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.