Citation Nr: 21073054 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-30 053 DATE: December 7, 2021 ORDER Entitlement to an increased disability evaluation for right knee total arthroplasty, rated as 30 percent disabling for the rating period since May 1, 2019, is denied. FINDING OF FACT Since May 1, 2019, the Veteran's right knee total arthroplasty is manifested by complaints of pain, limitation of flexion, and weakness. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 30 percent for right knee total arthroplasty, for the rating period since May 1, 2019 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1986 to November 1989 and from April 2006 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied the Veteran's claim for an increased disability evaluation for right knee osteoarthritis with instability. During the pendency of the appeal, in a January 2019 rating decision, the Veteran was granted a temporary total disability evaluation for his right knee total arthroplasty for the rating period from March 26, 2018 through April 30, 2019. A 30 percent disability evaluation was assigned, effective May 1, 2019. In an August 2021 Board decision, the Veteran was awarded a separate, 10 percent disability evaluation for right knee osteoarthritis, limitation of motion, and the Veteran's claim for an increased disability evaluation for right knee osteoarthritis with instability for the rating period prior to March 26, 2018 was denied; his claim for an increased disability evaluation for right knee total arthroplasty, for the rating period since May 1, 2019 was remanded. The award of a separate evaluation for right knee osteoarthritis with limitation of motion was effectuated in an August 2021 rating decision, which assigned an effective date of March 6, 2014. As the Veteran has not been granted the maximum benefits allowed with regard to his claim for an increased disability evaluation for right knee total arthroplasty for the rating period since May 1, 2019, this claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As noted, in February 2019 and August 2021, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in August 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). INCREASED RATING Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). 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. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). 1. Entitlement to an increased disability evaluation for right knee total arthroplasty, rated as 30 percent disabling for the rating period since May 1, 2019. The Veteran's right knee total arthroplasty is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055. As previously noted, the Veteran received a 100 percent disability evaluation under this Code from March 26, 2018 to April 30, 2019 and a 30 percent disability evaluation beginning May 1, 2019. Diagnostic Code 5055 assigns a 100 percent disability rating for one year following implantation of a prosthetic replacement of the knee joint. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. For intermediate degrees of residual weakness, pain or limitation of motion, the knee should be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum rating is 30 percent. The Board notes that Diagnostic Code 5055 was amended effective February 7, 2021. However, the only changes to the provision were to add knee resurfacing, to shorten the time period for a 100 percent rating from one year to four months, and to limit the minimum 30 percent rating for knee replacements but not knee resurfacing. Since none of these amendments affect the evaluation of the Veteran's knee replacement, no further discussion of the amendments will be made. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5055). Diagnostic Code 5256 applies to ankylosis (total loss of joint mobility) of the knee. Diagnostic Code 5261 provides for a 40 percent disability rating for extension limited to 30 degrees. A 50 percent disability evaluation is assigned for extension is limited to 45 degrees. Under Diagnostic Code 5262, a 40 percent disability evaluation is assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. For the time period from May 1, 2019, a rating in excess of 30 percent is not warranted for the Veteran's service-connected right knee total arthroplasty under 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, 5261, and 5262. The Board has considered entitlement to higher ratings under Diagnostic Codes 5256, 5261, and 5262, as directed by Diagnostic Code 5055. The Veteran does not contend, and the medical evidence of record does not demonstrate, that the Veteran has ankylosis or nonunion of the tibia and fibula of the right leg. Likewise, the Veteran's limitation of motion of the right knee does not equate to limitation of extension of the leg to 30 degrees. As such, a higher rating under Diagnostic Code 5261 is not warranted. The December 2019 VA examination report reflects that the Veteran had normal extension and flexion to 90 degrees. The Board also finds that the assignment of a higher (60 percent) rating is not warranted under Diagnostic Code 5055 for severe, chronic residuals of knee replacement consisting of severe painful motion or weakness in the right or left knee. VA treatment records, as well as the December 2019 VA examination report, reflect that the Veteran does not experience instability, deformity, atrophy, or swelling. Treatment records during the appeal period show that the Veteran experiences residual pain, described as "aching" but not that it was severe or that any weakness was consistent or of such severity that a 60 percent under Diagnostic Code 5055 was warranted. Moreover, although the Veteran reported experiencing pain and incoordination which results in limitation of functional ability, the Veteran did not have pain on weight-bearing or during range of motion. In short, there were no objective manifestations warranting the assignment of a rating in excess of 30 percent under Diagnostic Codes 5055, 5256, 5261, or 5262. The Board further finds that there is no basis for the assignment of any higher rating based on consideration of functional loss of the right knee. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018); Deluca, 8 Vet. App. at 204-06; Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The Board has considered the Veteran's reports of pain, reduced range of motion, and flare-ups. However, upon physical examination, the Veteran has not demonstrated limitation of extension or flexion of either knee to warrant the assignment of any higher evaluations. The evidence reflects that the currently assigned 30 percent disability rating properly compensates the Veteran for the extent of functional loss resulting from pain and reduced range of motion of the right knee. Here, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation during the appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran's December 2019 VA examination report indicated that the Veteran's VA examination was not conducted during a flare-up but indicated that the Veteran's range of motion could be estimated as 5 degrees extension to 90 degrees flexion. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). As a result, the evidence of record reveals manifestations consistent with the currently assigned 30 percent disability rating for right knee total arthroplasty. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.