Citation Nr: 21072782 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 15-28 464 DATE: December 6, 2021 ORDER Entitlement to a rating in excess of 30 percent for status post right knee total arthroplasty prior to August 9, 2021, is denied. Entitlement to a rating in excess of 60 percent beginning August 9, 2021, is denied. FINDINGS OF FACT 1. For the period from June 1, 2020 to August 8, 2021, the Veteran has been status post right knee arthroplasty without evidence of severe painful motion or weakness, or with clinical findings relating to knee ankylosis, knee limited extension, or impairment of the tibia and fibula that would warrant a rating greater than 30 percent disabling. 2. From August 9, 2021, the Veteran's status post right total knee arthroplasty is rated as the maximum schedular rating. CONCLUSIONS OF LAW 1. From June 1, 2020 to August 8, 2021, the criteria for a rating in excess of 30 percent for a status post right total knee arthroplasty have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.71a, Diagnostic Code 5055. 2. Beginning August 9, 2021, a schedular rating greater than 60 percent is not available for the Veteran's status post right total knee arthroplasty. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1980. This case has a long procedural history. The appeal was most recently before the Board in March 2021 when only the issue of a rating in excess of 30 percent from June 1, 2020 was remanded for further development. In an interim September 2021 rating decision, the rating for the Veteran's status post right total knee arthroplasty was increased to 60 percent, effective August 9, 2021. As the maximum schedular rating was only partially granted for the period on appeal, and the Veteran had not expressed satisfaction with the ratings, the appeal continues. AB v. Brown, 6 Vet. App. 35 (1993). The Board finds there has otherwise been substantial compliance with the remand directives and the Board will proceed to adjudication. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks entitlement to higher ratings for his service-connected status post right total knee arthroplasty. In applicable part, his right knee disability has been evaluated as 30 percent disabling from June 1, 2020 to August 8, 2021, and as 60 percent disabling from August 9, 2021, under 38 C.F.R. § 4.71a, Diagnostic Code 5055. Disability ratings are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76,453 (Nov. 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The February 2021 changes to the rating criteria for amended Diagnostic Code 5055 (resurfacing or replacement (prosthesis) of the knee, but only when a temporary total (100 percent) rating is provided. Under the old version of Diagnostic Code 5055, a 100 percent rating is warranted for a period of one year of convalescence following the implantation of the prosthetic knee for as provided in 38 C.F.R. § 4.30. Under the revised version, a 100 percent rating is warranted for a period of four months of convalescence following the implantation of the prosthetic knee or resurfacing for as provided in 38 C.F.R. § 4.30. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2021). Ratings for after the convalescent period are unamended. Both before and after February 7, 2021, a minimum 30 percent schedular evaluation is assigned for status total knee replacement. Intermediate degrees of residual weakness, pain or limitation of motion can be assigned greater than the minimum 30 percent rating, and are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating, the maximum schedular evaluation, is assigned status total knee replacement with chronic residuals consisting of severe painful motion or weakness in the knee. Based on the evidence of record, the Board concludes that higher ratings are not warranted for the Veteran's status post right knee total arthroplasty for any time during the appeal period. Entitlement to a rating in excess of 30 percent for status post right knee total arthroplasty prior to August 9, 2021. On October 2020 VA examination, the examiner noted the Veteran was status post April 2019 right total knee replacement. The Veteran reported that his right knee had continued to get worse since his surgery. He reported he could hardly walk, limped, used a cane, and had fallen several times. He reported periodic pain in his right knee, rated as 9 out of 10. The examiner noted that on examination the Veteran would hardly let him touch his skin and that he reported he had hypersensitivity of his whole leg since his surgery and it had gotten worse. The Veteran reported having flare-ups of his right knee several times per day which lasted 2 to 3 hours, eased up and came back again. He reported his flare-ups are precipitated by any physical labor or standing or walking for too long, and alleviated by sitting in his recliner with his legs elevated and boots off. He described the flare-ups as moderate to "extra severe." The Veteran reported having functional impairment as he could walk only 100 feet on a flat surface, was unable to climb stairs, squat, or climb a latter, and he had pain in his knee after sitting for 20 minutes. On range of motion testing, flexion was 5 degrees to 85 degrees, and extension was normal. The examiner noted the Veteran had pain on flexion which caused functional loss. The examiner noted that range of motion contributed to functional loss as he was unable to squat. There was evidence of pain on weight bearing and crepitus. The examiner noted there was localized tenderness on palpation of the joint, specifically 3 inches about the knee to the foot with extreme sensitivity to light touch, which the examiner indicated was out of portion to findings. The examiner noted that tenderness was severe as the Veteran looked like he wanted to hit him when he touched him lightly. The examiner indicated that the degree of hypersensitivity was inconsistent with his physical therapy notes and non-VA examinations. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The examiner noted that the Veteran was not being examined immediately after repetitive use over time and the examination was neither medically consistent or inconsistent with the Veteran's statements of functional loss with repetitive use over time. However, the examiner noted that pain and lack of endurance contributed to a functional loss with repetitive use. The examiner estimated after repetitive use, that flexion was 5 degrees to 80 degrees, and extension was normal. The examiner estimated the same for range of motion during a flare-up. The examiner noted the Veteran's right knee disability resulted in less movement than normal, swelling, disturbance of locomotion, interference with sitting, and interference with standing. On muscle strength testing, the examiner noted there was a reduction of both flexion and extension strength, but rated each as 5 out of 5. He did not have muscle atrophy or ankylosis. The examiner commented that although strength testing was limited due to his reported hypersensitivity, based on a review of his physical therapy notes strength was normal, and that if there was weakness there would be atrophy, which there was not. The examiner noted stability testing could not be performed due to his hypersensitivity. The examiner opined that the Veteran's residuals of a total knee joint replacement were intermediate degrees of residual weakness, pain or limitation of motion. In the same section, the VA examiner noted that the Veteran's reports of hypersensitivity were inconsistent with his physical therapy reports, which had no mention of the symptom, and he also had a vascular ultrasound which would be impossible if he had that degree of hypersensitivity. The examiner noted the Veteran's report that he constantly used a cane to help him walk. The examiner opined that his right knee disability impacted his ability to perform any type of occupational task as he reported he was unable to walk more than 100 yards, but was noted to have walked a quarter mile within 2 months of his knee replacement. He was unable to squat, climb ladders, and he used a cane so he could not carry anything. He also was unable to sit for more than 20 minutes without getting up to move. In a statement received in May 2021, the Veteran's cousin D.S. reported that he believed the Veteran's knee disability was getting worse and that he had to do his shopping for him on a regular basis because walking on hard surfaces would cause too much pain. He also reported that driving distances was getting difficulty and riding in a car was painful. For the period from June 1, 2020 to August 9, 2021, at the expiration of the total rating following the knee replacement, a higher rating is not warranted. During this period, the Veteran's right knee disability was not manifested by chronic residuals consisting of severe painful motion or weakness. While during this period the Veteran reported right knee pain, and at the October 2020 VA examination it was noted the Veteran had painful motion on examination, the examiner did not indicate it to be severe. Despite the limited strength testing due to his reported hypersensitivity to touch, he was found to have normal muscle strength on both right knee flexion and extension. Moreover, the Board acknowledges that the rating criteria direct that intermediate degrees of residual weakness, pain or limitation of motion can be assigned if clinical findings support greater than the minimum 30 percent rating, and are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a. However, the evidence does not support a higher rating by analogy to these Diagnostic Codes. Specifically, Diagnostic Code 5256 contemplates ankylosis of the knee, and there is insufficient evidence to show ankylosis, or that the Veteran's knee is fixed at a certain angle in "frozen" limited motion. Diagnostic Code 5261 contemplates limited extension of the knee, but the evidence of record does not reflect that extension was limited to 30 degrees or more, such that a rating higher than the 30 percent minimum rating under Diagnostic Code 5055 would be warranted. Finally, Diagnostic Code 5262 contemplates impairment of the tibia and fibula, but the only rating that would warrant greater than a 30 percent evaluation would be if there were evidence of non-union of the tibia and fibula with loose motion and requiring a brace. The radiology reports of record do not establish that such non-union exists. The Board also notes the Veteran reported hypersensitivity to light touch on October 2020 VA examination. However, the August 2021 VA examiner found this hypersensitivity to be a manifestation for the Veteran's painful scars residual of right knee surgical scarring, which is separately service-connected and not at issue in this appeal. Accordingly, a higher rating from June 1, 2020 to August 9, 2021 is not warranted. Entitlement to a rating in excess of 60 percent beginning August 9, 2021. On August 2021 VA examination, the Veteran reported increased right knee pain since his 2019 total knee replacement. No additional procedure was noted. He reported that he could not place weight on his right leg due to his knee pain, and that he had fallen on his right knee 6 months after his knee replacement. He reported he walked with a cane all the time, could not stand to dress, and had trouble getting in and out of his bathtub due to pain. He also had intermittent swelling. He reported having flare-ups lasting one hour and had to sit down after a flare-up to improve his right knee pain. His flare-ups consisted of stiffness, pain, and swelling and were precipitated from standing too long. He reported that during flare-ups he could not stand for long periods of time or walk long distances. He reported functional impairment as he was unable to perform repetitive use over time. The examiner noted he did not have reports or history of instability or recurrent subluxation or frequent effusion of the knee. On active range of motion testing, flexion was to 110 degrees and extension was normal. There was pain on flexion at 110 degrees. Passive range of motion was the same, as was the estimated range of motion after repeated use and during flare-ups. The examiner noted that the Veteran's limitation of range of motion contributed to a functional los as he was unable to kneel, squat, walk long distances or stand for long periods of time due to pain. The Veteran was not able to perform repetitive-use testing with at least three repetitions due to weakness, right knee pain, and decreased flexion. The Veteran was not examined immediately after repetitive use over time or during flare-ups, but the evidence suggested he had pain and weakness with repeated use over time and during flare-ups. The Veteran also had additional contributing factors of swelling, disturbance of locomotion, less movement than normal, weakened movement, and instability of station. The examiner noted that decreased flexion of the right knee along with pain and weakness contributed to his instability of station. The Veteran did not have recurrent subluxation or persistent instability, patellar instability, or a ligament tear. The examiner specifically noted the Veteran did not have muscle atrophy or ankylosis. The Veteran used a cane to help him walk. The examiner opined that the Veteran's right knee disability impacted his ability to perform any type of occupational task because his functional limitations included the inability to fully flex his right knee and right knee pain which directly contributed to his unsteady gait requiring a cane to prevent accidental falls and injury. The examiner noted that this functional limitation would cause the Veteran difficulty working in an occupation requiring frequent standing ambulation, running, going up steps, climbing ladders, going down steps or stairs, kneeling, bending, and stooping. The examiner noted that the Veteran would likely be able to perform sedentary work, although he would still likely have pain and would require frequent change of positions from sitting to standing. The examiner was also asked to comment on the Veteran's reports of nerve pain and hypersensitivity on the October 2020 VA examination. The examiner opined that the Veteran's nerve pain and hypersensitivity to touch were both related to the surgical scar from his total right knee replacement. The examiner explained that the area immediately around the surgical incision is often numb after surgery and may continue to be numb for several months or years after surgery, which was caused by the nerves running through the surgical site being damaged. For the period from August 9, 2021, the 60 percent rating currently assigned under Code 5055 is the maximum schedular disability rating available under this that code (excluding a 100 percent disability rating assigned for four months following implantation of prosthesis under the revised criteria, or the twelve months under the previous criteria). The record does not reflect that the Veteran underwent an additional knee replacement in his right knee after April 2019. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, there is no higher rating available under any other provision governing the evaluation of knee disabilities. In deciding the claim, the Board has also considered the Veteran's lay statements that his right knee disability is worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, because otherwise the preponderance of the evidence is against higher ratings. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.71a. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.