Citation Nr: 21071430 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 13-00 739 DATE: November 30, 2021 ORDER An initial rating in excess of 10 percent for a right knee disability, based on limited flexion, prior to November 6, 2018 is denied. A separate 10 percent rating for slight right knee instability and/or subluxation is granted from May 15, 2018 to November 6, 2018, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 30 percent for total right knee replacement, from January 1, 2020, forward, is denied. FINDINGS OF FACT 1. Prior to November 6, 2018, the Veteran's right knee disability did not result in ankylosis; dislocated or removed meniscus; flexion functionally limited to 60 degrees or less; extension functionally limited to 5 degrees or more; an impairment of the tibia and fibula; or genu recurvatum. 2. The Veteran's right knee disability first showed clinical signs of slight right knee instability on May 15, 2018, but no earlier. 3. From January 1, 2020, forward, the Veteran's right knee replacement has not resulted in severe chronic residuals from a total knee replacement surgery; ankylosis; extension functionally limited to 30 degrees or more; or an impairment of the tibia and fibula. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability, prior to November 6, 2018, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263. 2. The criteria for a separate 10 percent rating, from May 15, 2018 to November 6, 2018, for slight lateral instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for a rating in excess of 30 percent for residuals following a total right knee replacement, from January 1, 2020, forward, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5055, 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1985 to March 2010. VA received the Veteran's service connection claim for a right knee disability in February 2010. A February 2011 rating decision granted service connection and assigned a 10 percent rating, based on painful motion, effective April 1, 2010, the day after the Veteran separated from the military. A June 2019 rating decision awarded a 100 percent rating status post total knee replacement effective November 6, 2018, and assigned a minimum 30 percent rating, effective January 1, 2020. The Veteran's right knee disability has now been recharacterized as a total right knee replacement, under Diagnostic Code 5055. This appeal was previously before the Board in July 2017, April 2021, and most recently in August 2021. The July 2017 Board decision remanded the Veteran's increased rating claim for a new VA examination compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). The April 2021 Board decision remanded the claim to obtain outstanding treatment records and to afford the Veteran a new VA examination to determine the nature and severity of the right knee disability, following the convalescence period. The August 2021 Board decision remanded for a new VA examination that was compliant with the requirements set forth in Correia and the newly revised rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, which became effective on February 7, 2021. Specifically, the examiner was asked to provide a retroactive opinion as to the severity of the Veteran's right knee disability, prior to November 6, 2018, to include whether his right knee disability was more severe prior to the date the disability required a total knee replacement. The examiner was also asked to test range of motion and pain in active motion, passive motion, in weight-bearing, and in non-weight-bearing, and to provide the range of motion measurements using a goniometer. The examiner was also asked to describe any functional limitation during flare-ups and after repetitive use and to opine as to the additional limitation of motion. The Board will address the substantial compliance with the August 2021 Board remand directives in the appropriate section below. Increased Ratings Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic Code 5256 evaluates ankylosis of the knee. The record contains no evidence of right knee ankylosis. As such, this Diagnostic Code is not applicable. Diagnostic Code 5262 evaluates impairment of the tibia and fibula. The record contains no evidence of an impairment of the tibia and fibula. As such, this Diagnostic Code is not applicable. Diagnostic Code 5263 evaluates genu recurvatum. The record contains no evidence of genu recurvatum. As such, this Diagnostic Code is not applicable. Diagnostic Codes 5258 and 5259 evaluate the semilunar cartilage, which is synonymous with the meniscus. Under Diagnostic Code 5258, when the meniscus is dislocated with frequent episodes of locking, pain and effusion into the joint a 20 percent rating is assigned. Under Diagnostic Code 5259, when the meniscus has been removed, but remains symptomatic, a 10 percent rating is assigned. There is no evidence that the Veteran had a meniscectomy or any meniscus conditions. As such, this Diagnostic Code is not applicable. Under Diagnostic Codes 5260 and 5261 (limitation of knee flexion and knee extension respectively), a noncompensable rating may be assigned where either knee flexion is limited to 60 degrees or knee extension is limited to 5 degrees. A compensable (10 percent or greater) rating is assigned for either flexion limited to 45 degrees or extension limited to 10 degrees. A 20 percent rating is assigned for either flexion limited to 30 degrees or extension limited to 15 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. On February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the United States Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. The Board notes that a new General Rating Formula for knee disabilities applies to Diagnostic Code 5257, which contemplates recurrent subluxation or lateral instability. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. However, given that the Veteran had total knee replacement prior to February 7, 2021, the amendments to Diagnostic Code 5257 does not appear to have any retroactive application and will not be discussed any further. The Board also notes that Diagnostic Code 5262 has also changed, regarding, impairment of the tibia and fibula. However, the record contains no evidence of an impairment of the tibia and fibula. As such, the change in this Diagnostic Code does not affect the way his knee will be evaluated. 1. An initial rating in excess of 10 percent for a right knee disability, prior to November 6, 2018, is denied. The Veteran asserts that he is entitled to an initial rating in excess of 10 percent for his right knee disability prior to his total knee replacement. For that period, his right knee disability was rated under Diagnostic Code 5260, for limitation of flexion; the 10 percent rating was assigned based on painful motion resulting in functional loss. The Veteran was afforded VA examinations in September 2010, January 2014, and May 2021. However, the July 2017 Board decision found that the September 2010 and January 2014 VA examinations were inadequate for rating purposes because they did not comply with the requirements of Correia. Similarly, the August 2021 Board decision found that the May 2021 VA examination was inadequate for rating purposes because the examiner did not comply with the requirements of Correia. Given that the September 2010, January 2014, and May 2021 VA examinations were inadequate, they will not be summarized. The August 2021 Board remand directives asked that a VA examiner provide a retroactive opinion as to the severity of the Veteran's right knee disability, prior to November 6, 2018, to include whether his right knee disability was more severe prior to the date the disability required a total knee replacement. The Veteran was afforded a VA examination in September 2021. Regarding the severity of the right knee disability, prior to November 6, 2018, the examiner reported that it was more severe prior to the total knee replacement. He reported a substantially greater loss of range of motion with severe constant pain and instability. The examiner referenced a January 8, 2018 treatment note that reported the Veteran's goal for right knee flexion was 50 degrees, with 0 degrees of extension, showing that his range of motion was worse prior to the knee replacement. The September 2021 VA examiner appears to have referenced an incorrect treatment note. The VA examiner noted a January 8, 2018 treatment note, which referenced that the Veteran's goal for right knee flexion was 50 degrees, with 0 degrees of extension, showing that his range of motion was worse prior to the knee replacement. However, after a careful review of the Veteran's post-service treatment records, it appears that the correct date of the treatment note is January 8, 2019, which was after the total knee replacement surgery. Here, it appears that the findings that his range of motion was worse prior to the knee replacement was based on an incorrect factual basis. As such, the Board affords the September 2021 VA examiner's opinion regarding the severity of the Veteran's right knee disability, prior to November 6, 2018, very little probative weight. Although the Board has afforded very little probative weight to the opinion regarding the severity of the Veteran's right knee disability, prior to November 6, 2018, the Board does not believe that the September 2021 VA examination is otherwise inadequate. For example, the April 2021 Board decision remanded for any outstanding treatment records. In May 2021, the outstanding treatment records were associated with the claims file. Further, the Veteran's private treatment records, prior to his total right knee replacement surgery, are also associated with the Veteran's claims file. As such, the Board finds that there is sufficient competent evidence for the Board to make a fully informed decision on the claim. The Board also finds that there has been substantial compliance with the August 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A review of the Veteran's post-service medical records shows complaints and treatment for knee pain, but does not reveal any findings consistent with a rating in excess of 10 percent for limitation of flexion or a separate rating for limitation of extension. As previously discussed, the September 2010 and January 2014 VA examinations for the right knee were found to be inadequate. However, they are informative. The Board acknowledges that the requirements of Correia were not complied with, but notes that the Veteran retained flexion to well over 60 degrees and showed full extension, at both examinations, both of which meet the criteria for a noncompensable rating. It is also worth noting that the Veteran was capable of performing repetitive motion testing, at both examinations, without seeing additional limitation of motion, suggesting that while flare-ups, and/or repetitive use, might have caused an increase in symptoms, they did not lead to significant additional functional limitation. As such, the Veteran is not found to meet the criteria for a separate rating for limitation of extension; or an increased rating under Diagnostic Code 5260. The Board acknowledges the Veteran's assertion that he is entitled to a higher rating for his right knee disability. The Board also recognizes his report that decreased range of motion led to the 2018 total knee replacement. However, the clinical findings of record do not support a rating in excess of 10 percent for a right knee disability, prior to November 6, 2018. The Board believes that his right knee disability did cause him pain and impairment, prior to his total knee replacement. The Board also acknowledges that his right knee was causing him significant impairment, which is why a total knee replacement was undertaken. However, there is no clinical evidence of record that indicates that a rating in excess of 10 percent is warranted based on the relevant rating criteria. During this period on appeal, the clinical findings do not show the requisite right knee limitation of motion that would warrant a rating in excess of 10 percent. A 10 percent rating for limitation of flexion requires flexion to be limited to 45 degrees and a 20 percent rating requires flexion limited to 30 degrees. The evidence of record does not reflect such measurements. As such, greater than a 10 percent rating for right knee limitation of flexion is not warranted. 2. A separate 10 percent rating for slight right knee instability and/or subluxation is granted from May 15, 2018 to November 6, 2018 The Board notes that separate compensable ratings may be assigned for painful motion and for recurrent subluxation or lateral instability, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee. Diagnostic Code 5257 assigns a 10 percent disability rating for a slight impairment, 20 percent disability rating for a moderate impairment, and 30 percent disability rating for a severe impairment. Descriptive words such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. The Veteran's post-service treatment records shows that he first showed clinical signs of right knee instability on May 15, 2018. In May 2018, he was found to have right knee pain, swelling, and stiffness. The medical professional also noted that his knee suddenly buckled. The Board has carefully reviewed the Veteran's post-service treatment records, which do not reveal right knee instability or subluxation prior to May 2018. There were treatment notes in June, July, August, and October 2018, also showing complaints of right knee instability and notations that his knee buckled. The Board notes that the Veteran did not report any instability or subluxation at the September 2010 or in January 2014 VA examinations. Further, joint stability testing at both VA examinations did not reveal any right knee instability. The September 2021 VA examiner also noted that the Veteran had instability and repeated subluxation, that resulted in the total knee replacement, but did not provide any indication of when such instability and repeated subluxation began. Here, the Board finds that the Veteran's right knee condition does warrant a separate 10 percent rating based on right knee slight instability, pursuant to Diagnostic Code 5257. The Board has assigned a 10 percent rating for slight instability based on the description of instability in the Veteran's post-service treatment records and has assigned the date of May 15, 2018, the earliest indication of right knee instability. The Board notes that there are no clinical joint stability testing results from January 2014 to November 2018. Given that there are no clinical findings of moderate right knee instability, the Board finds that a 20 percent rating for right knee instability would be inappropriate. Accordingly, a separate 10 percent rating, but no greater, under Diagnostic Code 5257 for instability of the right knee, is granted. 3. A rating in excess of 30 percent for total right knee replacement, from January 1, 2020, forward, is denied. The Veteran asserts that he is entitled to a rating in excess of 30 percent for his total right knee disability because he experiences severe residuals. For the evaluation of total replacement of a knee with a prosthesis, the February 2021 rating criteria revisions included a decrease in the period for which a 100 percent rating is assigned following replacement. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76461 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5055). A longer period at a 100 percent rating is more favorable to the Veteran. Here, the Veteran was assigned a 100 percent rating from November 6, 2018 to January 1, 2020. As such, the earlier version of the regulations in evaluating the Veteran's right knee replacement appear to have been utilized and is the appropriate application under Diagnostic Code 5055. Diagnostic Code 5055 evaluates knee replacement. A 30 percent rating is assigned for a prosthetic replacement of a knee joint that results in an intermediate degree of residual weakness, pain or limitation of motion, a 60 percent rating is assigned for a prosthetic replacement of a knee joint that results in severe painful motion or weakness, and a 100 percent rating may be assigned for one year following implantation of prosthesis. The Veteran was afforded a VA examination in September 2021. The Veteran reported that since the knee replacement, there was no current swelling, tenderness, or instability; there was only minor pain with heavy or prolonged use. There was no current physical therapy or occupational therapy, but had range of motion and lifting restrictions, post-surgery. The Veteran reported that he did not have any flare-ups of the right knee. However, he did report functional loss, which he described as having to be careful with bending, and lifting or carrying objects. He also reported that he had to be mindful of how he moved, but generally does not have instability, pain, or swelling like he did before. On examination, he demonstrated flexion to 110 degrees, and extension to 0 degrees. Active and passive range of motion were found to be the same. There was no evidence of pain on examination. There was no evidence of crepitus and no localized tenderness of pain. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. The examiner indicated that the examination did not take place after repetitive use over time, but opined that pain, fatigability, and weakness would cause flexion to be limited to 90 degrees, with full extension. There was no opinion for flare-ups because the Veteran reported that he did not have them. There was no evidence of muscle atrophy or ankylosis. There was no evidence of subluxation or instability. Correia testing showed flexion to 110 degrees, with full extension for active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner reported that the Veteran reported severe painful range of motion and weakness and noted that he was competent to report his symptoms and history. The examiner noted that such reports have been acknowledged and considered in formulating any opinion. After the in-person examination and a review of the claims file, the examiner opined that the total knee replacement residuals were, intermediate degrees of residual weakness, pain, or limitation of motion. Here, the Board finds that there has been substantial compliance with the August 2021 Board remand directives, as they pertain to the total knee replacement. The examiner tested the Veteran's range of motion and provided the measurements for active motion, passive motion, in weight-bearing, and in non-weight-bearing. The examiner also described the functional limitation due to pain, weakness, fatigability, pain, and incoordination; and provided an opinion regarding additional loss in terms of range of motion after repetitive use over time. Here, the evidence of record does not establish that the Veteran's right total knee replacement warrants a rating in excess of 30 percent under Diagnostic Code 5055. The Board acknowledges the conflicting reports of the Veteran's post-surgery residuals. At the outset of the September 2021 VA examination, the Veteran appears to have reported only minor symptoms, with heavy or prolonged use. However, in the narrative section of the examination report, the examiner indicated that the Veteran reported having severe residuals after the total knee replacement. The Board finds that the September 2021 VA examination report, when taken in total, supports the examiner's finding of intermediate residuals. The Board points out that there was no evidence of pain on examination, during active motion, passive motion, weight-bearing, and non-weight-bearing. Neither was their evidence of localized tenderness or pain on palpation. Further, he was able to perform repetitive use testing with no additional loss of function at the September 2021 VA examination. The Board finds that the clinical evidence does not demonstrate severe painful motion or weakness. Here, the September 2021 VA examiner specifically reported after an in-person examination that the Veteran had had residuals of intermediate degrees of residual weakness, pain, or limitation of motion, in the right knee. The examiner acknowledged the Veteran's report of severe residuals, but nonetheless came to the conclusion of intermediate symptoms. Further, his range of motion testing was found to be at worst, 90 degrees, after repetitive use over time and was able to perform repetitive use testing with no additional loss of function at the VA examination during this period on appeal. Regarding the demonstration of severe weakness, there was no indication of atrophy. Accordingly, his intermediate degrees of residuals are to be rated by analogy under Diagnostic Codes 5256, 5261, or 5262. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. Regarding Diagnostic Code 5256, the September 2021 VA examiner indicated there was no evidence of right knee ankylosis. Regarding Diagnostic Code 5261, the Veteran demonstrated extension well excess of even a noncompensable rating at the September 2021 VA examination. Regarding Diagnostic Code 5262, the September 2021 VA examiner did not indicate any impairment of the right tibia or fibula. The assignment of an increased or separate compensable rating under any of the relevant Diagnostic Codes is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, 5262. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. Here, the September 2021 VA examiner indicated that pain would lead to a decrease in flexion, after repetitive use over time. The examiner opined that the Veteran's active motion measurement of 110 degrees would be limited to 90 degrees after repetitive use over time, with no loss of extension. Even considering functional loss after repetitive use over time, the Veteran was given an opinion that he would retain range of motion to well in excess of a compensable rating for limitation of flexion and extension. Furthermore, the evidence simply does not support that the Veteran's total right knee replacement has resulted in findings consistent with a higher rating. Thus, greater ratings for limitations of flexion and extension are not warranted under DeLuca. While the Veteran has been shown to experience minor knee pain, the Court has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Here, after the total knee replacement surgery, the clinical evidence of record has indicated that the Veteran has retained flexion and extension, well in excess of the ratings assigned. As such, there is no basis for ratings under Diagnostic Codes 5260 or 5261. Increased ratings beyond that granted in this decision are not warranted. The Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.