Citation Nr: 21074274 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-13 568 DATE: December 14, 2021 ORDER A rating in excess of 30 percent prior to April 14, 2021, and in excess of 60 percent thereafter for status post total left knee arthroplasty with history of degenerative joint disease is denied. FINDINGS OF FACT 1. Prior to April 14, 2021, the Veteran's total left knee arthroplasty with history of degenerative joint disease did not result in chronic residuals consisting of severe painful motion or weakness, ankylosis, extension limited to at least 30 degrees, or impairment of the tibia and fibula. 2. As of April 14, 2021, the Veteran's total left knee arthroplasty with history of degenerative joint disease results in chronic residuals consisting of severe painful motion or weakness in the affected extremity; the rating criteria reasonably describes the Veteran's disability level and symptomatology associated with such disability. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent prior to April 14, 2021, and in excess of 60 percent thereafter for status post total left knee arthroplasty with history of degenerative joint disease is not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the record. In May 2021, the Veteran was notified that the Veterans Law Judge who conducted the July 2019 hearing was no longer employed at the Board and afforded him the opportunity to testify at another hearing; however, the next month, he indicated that he did not want another Board hearing. In October 2019, November 2020, and July 2021, the case was remanded for additional development, and now returns for further appellate review. Entitlement to a rating in excess of 30 percent prior to April 14, 2021, and in excess of 60 percent thereafter for status post total left knee arthroplasty with history of degenerative joint disease. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period before the Board begins on April 1, 2016, as the Veteran stated he is satisfied with his assigned ratings prior to such date. See July 2019 hearing transcript. For the appeal period prior to April 14, 2021, such disability is evaluated as 30 percent rating disabling, and 60 percent disabling thereafter pursuant to DC 5055. In this regard, DC 5055 provides for a 100 percent rating for one year following the implantation of prosthesis (i.e., knee replacement surgery). After that period, a 60 percent rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity is warranted. A minimum rating of 30 percent is provided post knee replacement. Finally, for intermediate degrees of residual weakness, pain, or limitation of motion, warranting a rating greater than 30 percent, but less than 60 percent, the disability should be rated by analogy to DCs 5256, 5261, 5262. 38 C.F.R. § 4.71a. Under 5256, ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent rating. Under DC 5261, a 40 percent rating is assigned where extension is limited to 30 degrees and a 50 percent rating is assigned where such is limited to 45 degrees. Under DC 5262, nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating. Turning to the evidence of record, the Veteran was afforded a VA examination in July 2015, just prior to the period on appeal. At such time, he reported worsening symptoms with difficulty straightening out his left leg, which sometimes gives out. Upon examination, the Veteran's left knee was tender to palpation and he had crepitus, but no joint effusion was noted. He had flexion to 110 degrees and normal extension without pain. Upon repetitive range of motion testing, the Veteran maintained the same range of motion without any additional limitations, however, swelling was noted to contribute to less movement than normal. No instability was observed on examination, and the Veteran had normal anterior and posterior drawer sign, McMurray test, and Lachman's test. There was no laxity on varus or valgus strain. The Veteran occasionally used a cane for ambulation. Pursuant to the October 2019 Board remand, the Veteran was afforded another VA examination in January 2020. At such time, he again reported worsening symptoms and constant pain. The examiner noted the Veteran now had valgus deformity, which was mild on the left leg. When walking, the Veteran's knee was turning out, causing pain. It was noted that he underwent a left total knee replacement in 1998 and a revision in 2015. He further reported flare-ups that limited prolonged walking, standing, kneeling, squatting, taking stairs, and getting in and out of the car. Upon examination, the Veteran's left knee was tender to palpation and he had crepitus, but no joint effusion was noted. He had flexion to 110 degrees with normal extension. Following repetitive motion there was no additional limitations, but during a flare-up, range of motion was estimated to be flexion to 90 degrees with normal extension. The Veteran did not have ankylosis. Muscle strength and instability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation, or tibial and/or fibular impairments. The examiner noted the Veteran's symptoms had worsened, but there were no additional diagnoses. In an August 2020 statement, the Veteran described "significant severe pain" that made it impossible to sit for any length of time and made him feel sick to his stomach. He further described difficulty walking any distance and going up and down stairs due to pain and weakness in his knee. An August 2020 letter from his private clinician, D.M., noted the Veteran had chronic residuals of his left revision total knee arthroplasty consisting of severe painful motion and weakness. Private treatment records dated September 2020 reflect full extension and flexion to 115 degrees with mild pain. See WestSound Orthopedics records. Pursuant to the November 2020 Board remand, the Veteran was afforded another VA examination in February 2021. At such time, the Veteran reported limited walking, that he was not able to run, jump, climb, kneel, crouch, and unable to do heavy lifting. He denied flare-ups. Physical examination showed left knee flexion to 90 degrees and extension to 15 degrees with pain. There was no evidence of additional limitation in range of motion on repetitive-use testing. The Veteran did not have tenderness or pain to palpation for joint line or soft tissues of the left knee; and there was no evidence of crepitus, or pain on weightbearing. The Veteran did not have muscle atrophy or ankylosis. Instability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation, or tibial and/or fibular impairments. The Veteran indicated that he did not use assistive devices. The examiner noted that there was objective evidence of pain on passive range of motion testing. In April 2021, the Veteran submitted private treatment records that reflect post knee prothesis placement with chronic residual consisting of severe painful motion and weakness of the affected left lower extremity. At such time, the Veteran reported his leg was consistently bent, and physical examination confirmed some valgus of the knee, arthritis of the hip, and altered rotation of the gait all increasing dysfunction. See WestSound Orthopedics records. Prior to April 14, 2021, the Veteran's left knee disability has been evaluated as 30 percent disabling under DC 5055. Here, the Board finds that he has not reported any additional or more severe symptoms that would warrant a rating in excess of 30 percent. In this regard, the record reflects that the Veteran's left knee replacement has not resulted in chronic residuals consisting of severe painful motion or weakness in the affected extremity. Significantly, the January 2020 and February 2021 VA examiners found that his left knee replacement did not result intermediate degrees of residual weakness, pain, or limitation or motion, which is consistent with the currently assigned 30 percent rating. Muscle strength testing was normal on VA examinations in July 2015 and January 2020. Additionally, prior to April 14, 2021, there was no objective evidence of muscle atrophy or instability. Moreover, while the Veteran reported pain that limited prolonged walking and sitting, and that he was not able to run, jump, climb, kneel, crouch, and is unable to do heavy lifting, such symptomatology is contemplated by his currently assigned 30 percent rating. Further, September 2020 private treatment records reflect mild pain on range of motion testing. As such, the Board finds that a rating in excess of 30 percent is not warranted under DC 5055. Further, based on the foregoing, the AOJ assigned a 60 percent rating as of April 14, 2021, the date the Veteran submitted private treatment records reflecting post-prothesis placement with chronic residuals of severe painful motion and severe weakness, which includes severe painful motion and some weakness in the left leg. However, a higher rating under DC 5055 for the left knee disability is not warranted for the period since April 14, 2021. The Veteran's left knee replacement was in 2015, over six years prior to the rating period decided herein. A 100 percent rating is available only during the year following the knee replacement surgery. Thus, the Veteran is in receipt of the maximum schedular rating under DC 5055 for this time period. There are no other applicable diagnostic codes that would afford him a schedular rating in excess of 60 percent for such period of time. Furthermore, the record reflects that the Veteran's left knee replacement has not resulted in ankylosis, limitation of extension to 30 degrees or more, or nonunion of the tibia and fibula with loose motion requiring a brace at any time during the appeal period in order to warrant a rating in excess of 30 percent under DCs 5256, 5261, or 5262. Finally, the Board notes that the Veteran has been awarded a separate noncompensable rating for the scars associated with his left knee disability for the entire appeal period and the evidence does not show, nor has he alleged, that such scars are symptomatic or of a size so as to warrant a compensable rating. See February 2021 VA examination. In reaching its conclusions, the Board acknowledges the Veteran's belief that his left knee disability is more severe than as reflected by the currently assigned ratings. While the Board recognizes the Veteran is competent to describe his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his left knee disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disability. The Board has considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected left knee disability; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Thus, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the Board finds that a rating in excess of 30 percent prior to April 14, 2021 and in excess of 60 percent thereafter, for status post total left knee arthroplasty with history of degenerative joint disease is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J. Dworkin Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.