Citation Nr: 21070419 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-26 707 DATE: November 23, 2021 ORDER 1. A 60 percent rating for the Veteran's s post total knee replacement (TKR) left knee disability is granted prior to June 21, 2016, subject to the regulations governing payment of monetary awards. REMANDED 2. Entitlement to a rating in excess of 10 percent for exostosis of the skull is remanded. 3. Entitlement to a compensable rating for head scar due to exostosis of the skull is remanded. FINDING OF FACT It is reasonably shown that, prior to June 21, 2016, the Veteran's post-TKR left knee disability was manifested by chronic residuals of severe painful motion or weakness in the knee; 60 percent is the maximum schedular rating provided for post-TKR knee disability following the convalescent period, and symptoms or impairment not encompassed by schedular criteria are not shown or alleged. CONCLUSION OF LAW A 60 percent rating for the Veteran's left knee disability is warranted prior to June 21, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5055, 5256, 5261, 5262. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from April 1978 to May 2001. These matters are before the Board on appeal from Department of Veterans Affairs (VA) rating decisions in November 2010 (which continued a 10 percent rating for exostosis of the skull) and June 2014 (which granted a 100 percent rating for post-TKR left knee disability effective October 22, 2013, and a 30 percent rating effective November 1, 2014). [A May 2015 rating decision amended the effective date for the 30 percent rating for left knee disability to December 1, 2014.] In February 2021, a videoconference hearing was held before the undersigned; a transcript is in the record. 1. A 60 percent for retropatellar pain syndrome, left knee, status post total knee replacement prior to June 21, 2016 is warranted. The medical evidence reflects that the Veteran first underwent left total knee replacement on October 22, 2013. A June 2014 rating decision granted a 100 percent rating for 13 months following prosthetic replacement of the knee joint, effective October 22, 2013; a 30 percent rating was assigned effective November 1, 2014. A May 2015 rating decision determined that clear and unmistakable error had been found in the effective date assigned for the 100 percent and 30 percent ratings, and corrected the date for the 100 percent rating to terminate on December 1, 2014 instead of November 1, 2014. The Veteran underwent a revision left total knee replacement on June 21, 2016. A November 2016 rating decision granted a temporary total rating for convalescence after surgical treatment effective June 21, 2016; a 60 percent rating was assigned effective August 1, 2017. The periods of temporary total rating are not before the Board, and the Veteran has stated that she does not disagree with the current 60 percent rating for her left knee disability. Therefore, the matter on appeal is limited to entitlement to a rating in excess of 30 percent from December 1, 2014 to June 21, 2016. An October 2013 medical memorandum for the record states that the Veteran underwent a left total knee arthroplasty for severe osteoarthritis on October 22, 2013, and her estimated recovery time should be six to eight months. On July 2014 VA examination, the Veteran reported that she underwent left TKR in October 2013 and continued to have pain in her left knee but not as severe as before the surgery, and no night pain. She reported that she still had difficulty walking up and down steps, which caused increased pain, and long-distance walking was also painful. On physical examination, left knee flexion was to 110 degrees with objective evidence of painful motion at 110 degrees, and extension was to 10 degrees with no objective evidence of painful motion. There was no additional limitation in range of motion following repetitive-use testing. The left knee was tender to palpation. Muscle strength testing was normal. Joint stability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation, any tibial and/or fibular impairment, or meniscal conditions. The Veteran reported occasional use of a left knee brace. X-rays showed surgical components well seated and without evidence of hardware complications, with moderate suprapatellar joint effusion. The examiner opined that the left knee disability did not impact the Veteran's ability to work, and that the Veteran had surgical residuals of intermediate degrees of residual weakness, pain, or limitation of motion. In an August 2014 statement, the Veteran asserted that the July 2014 VA examiner did not take any measurements or check for range of motion, and the exam was inadequate. She stated that she still had chronic pain with numbness, swelling, and limited range of motion. On March 2015 VA examination, left knee flexion was to 120 degrees and extension was to 0 degrees, with no pain noted on exam. There was no evidence of pain with weight bearing, and no objective evidence of crepitus. Generalized synovial tenderness was noted. There was no additional functional loss or range of motion following repetitive-use testing. Muscle strength testing was normal. There was a history of recurrent effusion, described as intermittent effusion with activity. On joint stability testing, Lachman test (anterior instability), posterior drawer test (posterior instability), and lateral instability tests were normal; however, medial instability testing was 2+ (5 to 10 millimeters). Residuals of left knee TKR were described as painful ambulation. The Veteran reported occasional use of a cane for support and comfort. The examiner opined that the Veteran's bilateral knee disabilities impact her ability to perform occupational tasks due to decreased mobility, pain, and difficulty with stairs. On April 2015 treatment, a bone scan showed a pattern of increased activity around the tibial component of the left knee prosthesis suggesting aseptic loosening of that component. The provider notified the Veteran of these findings and recommended conservative care and observation. In a July 2015 statement, the Veteran stated that since her October 2013 left knee TKR surgery, she continued to experience constant pain, swelling, and stiffness on a daily basis. She reported that the pain was worse when using steps, stiffness and lack of flexibility were always present, and swelling was only moderately managed with medication. She also submitted statements from her husband and two coworkers attesting to the severity of her left knee symptoms. In a March 2016 statement, the Veteran stated that she was unable to walk or stand up without assistance and she experienced chronic knee pain. She stated that the pain had become noticeably different within 6 months after her October 2013 surgery, and she had told her surgeon that something was not right with the implant. In an April 2016 statement, the Veteran's treating orthopedic surgeon stated that the Veteran had undergone TKR surgery in October 2013 without complication and initially did very well with her postoperative recovery. The provider stated that at about 5 to 6 months after surgery the Veteran began having increasing pain, and over time she felt it was worse than her pain before the initial surgery. The provider stated that the Veteran was also experiencing a sensation of instability and giving way, and her X-rays began to show signs of subsidence; a revision TKR was indicated, and was scheduled for June 2016. The provider opined that the Veteran's disability claim should be revised to adjust for the complication of aseptic loosening of her left TKR that had become more painful for her than she experienced preoperatively with degenerative joint disease. On October 2016 VA examination, the Veteran was noted to have undergone a revision of her left TKR in June 2016 due to failure of the previous surgery. On August 2017 VA examination, the examiner cited to February 2016 X-rays which showed moderately large joint effusion with left knee arthroplasty with possible mild loosening around the tibial component; and April 2016 left knee X-rays which showed postsurgical features of left TKR with interval development of subtle lucency surrounding the tibial component; hardware loosening could not be excluded, and clinical correlation was recommended. At the Board hearing, the Veteran testified that she first underwent left total knee replacement in October 2013. She testified that the residuals of that surgery were significant with continuous joint effusions throughout the appeal period, and that she eventually required a revision surgery in June 2016; that within 90 days after the 2013 surgery, she experienced more pain and swelling than she believed she should have had by then during her recovery, and the knee continued getting worse instead of better; that after her ideal postoperative recovery period, she had persistent knee pain, swelling, severe weakness, and difficulty climbing stairs such that she had to stabilize herself because she never felt secure that her knee would carry her; and that she then walked with a cane or used her husband for support. Additional VA and other treatment records show symptoms similar to those reported on the VA examinations described above. The Veteran has also submitted lay statements attesting to the severity of her knee problems. Revisions were made to certain regulations governing ratings for musculoskeletal disabilities, effective February 7, 2021. As the period for consideration in this matter was long prior to February 7, 2021, the revised criteria have no application in this matter, and will not be addressed further. 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where there is a question as to which of two 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. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups). Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As noted above, some revisions to musculoskeletal Codes have been made effective February 7, 2021. The Veteran's left knee disability is rated under Code 5055 (post-TKR knee disability), which was revised. Under the old criteria for Code 5055 (for prosthetic replacement, defined as "total replacement of the joint"), a 100 percent rating is warranted for 1 year following implantation of prosthesis, a 60 percent rating for chronic residuals of severe painful motion or weakness in the joint, and ratings by analogy to Codes 5256, 5261 or 5262 for intermediate degrees of weakness, pain, or limitation of motion (with a 30 percent minimum rating). The record reasonably supports that throughout the period for consideration (from December 1, 2014 to June 21, 2016, it is shown that the Veteran's post-TKR left knee disability was manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity, i.e., the left leg, warranting a 60 percent rating under Code 5055. Although the July 2014 and March 2015 VA examinations did not report objective findings of severe painful motion or weakness in the left leg, the Board finds there is probative competent evidence that suggests otherwise. The Board finds especially noteworthy in that regard the April 2016 statement by the Veteran's treating surgeon (who was conducting periodic post-surgical assessments, obviously has particular subject matter expertise, and is best positioned to comment on the severity of the 2013 TKR residual disability). That provider explained in detail that initially the Veteran's recovery from surgery was uneventful, but that 5 or 6 months, after the surgery (more than 12 a year prior to the period for consideration, when the disability was rated 100 percent), she began experiencing pain which was worse than her pre-TKR pain. In other words, there was initial evidence of a problem with the prosthesis prior to the period for consideration, and evidence of progressive worsening thereafter. Ultimately, diagnostic studies confirmed a failed prosthesis, and the Veteran underwent revision surgery. The Board finds credible the Veteran's sworn testimony and her and others' statements that throughout the period for consideration she experienced knee pain accompanied by a feeling that her post-TRK knee would not hold her, and that she had to use a cane or her husband for support. The Board finds the Veteran's reports, and the lay supporting statements submitted, considered with her treating surgeon's statement and the reports of diagnostic studies prior to the 2016 revision TKR which revealed underlying worsening pathology to account for her complaints, persuasive evidence that throughout the period she had the degree of post-TKR knee disability consistent with the criteria for a 60 percent rating. Therefore, a 60 percent rating is warranted throughout the appeal period (from December 1, 2014 to June 21, 2016). Code 5055 specifically provides for a maximum rating of 60 percent (following the postoperative convalescent period) unless there are exceptional or unusual circumstances warranting referral of the case for extraschedular consideration. 38 C.F.R. § 3.321. While the assignment of the maximum schedular rating for the Veteran's post-TKR left knee disability raises a question of whether referral of the claim for increase to the Director of Compensation for consideration of an extraschedular rating is warranted, the Board's review of the evidence of record in the matter found that referral is not necessary. There is no evidence (or allegation) of left knee symptoms or functional impairment not encompassed by schedular criteria. The symptoms the Veteran reported are all encompassed by those criteria. REASONS FOR REMAND 2., 3. Entitlement to a rating in excess of 10 percent for exostosis of the skull and to a compensable rating for head scar secondary to exostosis of the skull. At the Board hearing, the Veteran testified that the scar on the back of her head is painful and tender to the touch, and there is a raised lump on the back of her head about one-inch in size due to the exostosis. She testified that she has an area of numbness in that location which has grown larger. The Board finds that the evidence of record is inadequate to decide these claims, as the examinations of record do not sufficiently address all of the Veteran's reported symptoms of her exostosis of the skull, head scar, and any related neuropathy. Additional treatment records added to the record since her last examination in April 2015 and her deemed-credible testimony suggest that the disability may indeed have worsened. Given the duration of the interval since she was last examined and the allegation of worsening, a contemporaneous examination to assess the disabilities is necessary. The matters are REMANDED for the following: Arrange for the Veteran to be examined by an appropriate clinician to assess the severity of her service-connected exostosis of the skull, head scar, and any related neurological manifestations found. The Veteran's claims file must be reviewed by the examiner. The examiner should address all aspects of the disability, including whether the head scar is painful/tender to the touch, and whether there indeed are neurological manifestations of the disability (describing in detail the nature and severity of any found). The examiner should have available (and review) the provisions of 38 C.F.R. § 4.124a (pertaining to diseases of the cranial nerves); note the manifestations the Veteran reports; and describe in detail all symptoms and related functional limitations found on examination. The examiner should include rationale with all opinions, with citation to supporting factual data and medical principles, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.