Citation Nr: 21075834
Decision Date: 12/21/21	Archive Date: 12/21/21

DOCKET NO. 15-12 665
DATE: December 21, 2021

ORDER

Entitlement to a 10 percent rating for degenerative changes, right knee, postoperative for the period prior to February 11, 2014, is granted.

Entitlement to a rating in excess of 10 for lateral subluxation, right knee for the period prior to February 11, 2014, is denied.

Entitlement to a 30 percent rating for degenerative joint disease of the right knee with a history of lateral subluxation for the period from February 11, 2014, to June 13, 2019 is granted.

Entitlement to a rating in excess of 60 percent for right knee total knee arthroplasty (previously rated as degenerative joint disease, right knee) for the period since September 1, 2020, is denied.

FINDINGS OF FACT

1. For the period prior to February 11, 2014, the Veteran's degenerative changes, right knee, postoperative was manifested by painful motion.

2. For the period prior to February 11, 2014, the Veteran's right knee instability was manifested by slight recurrent lateral instability.

3. For the period from February 11, 2014, to June 13, 2019, the Veteran's right knee was manifested by additional functional loss that resulted in weakness, limited motion, and additional pain.

4. For the period since September 1, 2020, the Veteran is in receipt of the maximum disability rating under Diagnostic Code 5055 for status-post right total knee replacement in the form of severe painful motion and weakness. 

CONCLUSIONS OF LAW

1. The criteria for a 10 percent rating, but no higher, for degenerative changes, right knee, postoperative for the period prior to February 11, 2014, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.45, 4.71a, Diagnostic Codes 5259-5010 (2020). 

2. The criteria for a rating in excess of 10 percent for right knee instability for the period prior to February 11, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4. 1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020).

3. The criteria for a 30 percent rating, but no higher, for degenerative joint disease of the right knee with a history of lateral subluxation for the period from February 11, 2014, to June 13, 2019, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.45, 4.71a, Diagnostic Codes 5260 (2020). 

4. The criteria for a rating of 60 percent for status post right knee replacement for the period since September 1, 2020 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.45, 4.71a, Diagnostic Code 5055 (2020). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1984 to January 1987.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Board previously remanded these issues in June 2018 and August 2020 for additional development. 

In the October 2021 rating decision, the RO granted an increased rating of a 60 percent evaluation for the Veteran's service-connected right knee replacement with limited range of motion, effective September 1, 2020.  The Board notes that since the increase to 60 percent did not constitute a full grant of the benefits sought, the issue of entitlement to an increased rating in excess of 60 percent for service-connected right knee replacement with limited range of motion, for the period since September 1, 2020 remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

Increased Ratings

Laws and Regulations

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2020).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2020). 

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2020).  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  See also Hart v. Mansfield, 21 Vet. App. 505 (2008).

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 (2020).

In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  He is also competent to report symptoms of his right knee disability.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  The Veteran is competent to describe his symptoms and their effects on employment or daily activities.  

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.  38 C.F.R. § 4.40.  Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.).  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement.  38 C.F.R. § 4.45.

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  See 38 C.F.R. § 4.59.  Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis.  Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

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).

Although pain may cause functional loss, pain itself does not constitute functional loss.  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.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).

For the period prior to February 11, 2014, the Veteran currently has a noncompensable rating for degenerative changes, right knee, postoperative under Diagnostic Codes 5259-5010. The Veteran has a current 10 percent disability rating for lateral subluxation of the right knee for the period prior to February 11, 2014 under Diagnostic Code 5257 and a current 10 percent disability rating for osteoarthritis and patellofemoral syndrome of the right knee for the period from February 11, 2014 to September 13, 2019 under Diagnostic Codes 5258 and 5055.

For the period since September 1, 2020, the Veteran has a current 60 percent rating under Diagnostic Code 5055 for his service-connected right knee replacement.

Notably, the criteria for knee instability and knee replacement under Diagnostic Codes 5257 and 5055 have changed during the period covered by this appeal, effective February 7, 2021. See 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 Codes, 5257, 5055). 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, Diagnostic Code 5055, which governs knee replacement (prosthesis), provides that for one year following implantation of the prosthesis, the knee joint warrants an evaluation of 100 percent.  Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted.  Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5256, 5261 or 5262.  The minimum rating is 30 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5055.  38 C.F.R. § 4.71a, Diagnostic Code 5055. 

As of February 7, 2021, under the amended criteria, Diagnostic Code 5055 notes that at the conclusion of the 100 percent evaluation period, residuals of a knee replacement surgery are to evaluated under Diagnostic Codes 5256 through 5262. 

While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the amendments did not change the criteria under Diagnostic Codes 5010, 5256, 5258, 5259, 5260, or 5261.

Diagnostic Code 5010, traumatic arthritis, is to be rated under Diagnostic Code 5003, degenerative arthritis. 38 C.F.R. § 4.71a. Diagnostic Code 5003 states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When the limitation of motion is not compensable under appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order.  If flexion of the knee is limited to 30 degrees a 20 percent rating is in order.  If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order.  If extension of the knee is limited to 15 degrees a 20 percent rating is in order.  If extension of the knee is limited to 20 degrees a 30 percent rating is in order. 

Under the criteria in effect prior to February 7, 2021, under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262.

Under the revised criteria, Diagnostic Code 5262 now provides a 30 percent evaluation for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities; a 20 percent rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, a 10 percent rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; and a noncompensable rating is warranted for shin splints that have treatment less than 12 consecutive months, one or both lower extremities. 

Under the criteria in effect prior to February 7, 2021, Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability.  A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability.  A 30 percent rating is warranted for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). 

The terms "mild," "moderate," "moderately severe" 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 (2020).  The use of terminology such as "mild" or "moderate" by VA examiners and others, 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 regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2020).

VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004).  The basis for the opinion was a finding that a limitation in planes of movement were each compensable.  Id.  

A claimant who has arthritis and instability of the knee may also be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257, and rating a knee disability under both of those codes does not amount to pyramiding under 38 C.F.R. § 4.14 (2020). VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994).  However, a separate rating must be based on additional compensable disability.

Under the revised criteria, Diagnostic Code 5257 for recurrent subluxation and instability now provides a 30 percent rating for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation or a sprain incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. A 20 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.

For patellar instability under the revised Diagnostic Code 5257, a 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker.

Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a maximum 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258.

Diagnostic Code 5259, removal of semilunar cartilage, symptomatic, warrants a 10 percent rating.

For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II.

Factual Background and Analysis

The Veteran filed a claim for an increased rating that was received by VA in August 2011.

The Veteran underwent a VA examination in December 2011. On examination, flexion was from 0 to 140 degrees with objective evidence of painful motion beginning at 55 degrees. Extension was from 0 degrees with objective evidence of painful motion for extension beginning at 5 degrees. The Veteran was able to perform repetitive use testing with no additional loss of motion. There was no objective evidence of painful motion. The Veteran had pain on movement bilaterally and crepitus bilaterally. He also had tenderness or pain of the knees. Stability testing of the right knee was normal. However, there was a history of recurrent slight patellar subluxation/dislocation of the right knee. 

The Veteran underwent a VA examination in November 2014. The Veteran had bilateral degenerative joint disease and patellofemoral pain syndrome of the knees. The Veteran had also undergone meniscectomies of the knees and had chronic laxity subluxation of the knees. He presented with complaints of consistent daily right knee pain which was 3/10 on a pain scale. He also had tenderness, stiffness, weakness, easily fatigued, lack of endurance, swelling, heat, loss of range of motion, popping, and grinding. The Veteran had surgery on his right knee in 1984 but the condition had worsened. The Veteran reported having flare-ups of his right knee disability as he had swelling and his knee locked at times. On examination, flexion was from 0 to 140 degrees or greater and extension was from 0 degrees. The Veteran was able to perform repetitive use testing with no additional loss of motion. He had functional loss as he had less movement than normal and pain on movement. He also had tenderness to palpation. Muscle strength testing was normal. Stability testing was also normal and there was no history of recurrent subluxation. The Veteran had a meniscal condition with frequent episodes of joint locking and joint pain. Despite his meniscectomy in 1984, the Veteran's right knee was still painful and he still had discomfort in the patella. He did not use any assistive devices but the examiner found that the Veteran's right knee disability impacted his ability to work as he had partial impairment of physical activities such as heavy lifting, pushing, pulling or carrying. 

The Veteran underwent a VA examination in January 2017. It was noted that the Veteran had undergone arthroscopic right knee surgery in the 1980's and underwent a meniscectomy on the right knee in 2015. The right knee locked up 1 to 2 times a month and he had right knee swelling twice a week. Prolonged sitting, standing and driving all exacerbated the condition. He had constant pain that was 8/10 on the pain scale. He wore braces on both knees and had to curtail his activities. He reported flare-ups every 2 to 3 months as he had pain and swelling. He had functional loss as he could only drive for 1.5 hours. He could no longer coach or play basketball. It was difficult to get out of bed in the morning and was also difficult to get out of a seated position. On examination, flexion was from 0 to 125 degrees and extension was from 125 to 0 degrees. The range of motion itself did not contribute to functional loss but there was pain with weight bearing as well as localized tenderness. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with flexion from 5 to 115 degrees and extension was from 115 to 5 degrees after 3 repetitions. Pain significantly limited functional ability with repeated use over a period of time and during flare-ups but the examiner was unable to describe this limitation in terms of range of motion. The Veteran also had swelling, disturbance of locomotion and interference with sitting and standing. Muscle strength was normal and there was no muscle atrophy. There was no ankylosis. Stability testing was also normal and there was no history of recurrent subluxation. The Veteran had a meniscal condition with frequent episodes of joint locking and joint pain. He constantly used hinged knee braces. The Veteran's knee disability impacted his occupation as a real estate appraiser as his job involved bending, climbing and walking inside and outside of buildings. 

The Veteran underwent a VA examination in April 2019. The Veteran reported bilateral knee pain, locking and swelling as well as his knee giving way. He did not report flare-ups. The Veteran reported that he could not drive more than half an hour and could not do yard work. Flexion was from 0 to 90 degrees. There was pain on the examination and evidence of pain with weight bearing. There was also moderately severe tenderness and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional loss of motion. Pain significantly limited functional ability with repeated use over a period of time and the examiner was able to describe this limitation in terms of range of motion as flexion was from 0 to 90 degrees. Muscle strength was normal and there was no muscle atrophy. There was no ankylosis. Stability testing was also normal and there was no history of recurrent subluxation. The Veteran had a meniscal condition with frequent episodes of joint locking and joint pain. The Veteran constantly used a brace and regularly used a cane. The Veteran's knee disability impacted the Veteran's ability to work as the Veteran reported that he worked with pain on a continuous basis and took him longer to do the work. The examiner found that the Veteran could not perform tasks that required periods of standing, prolonged walking or any degree of running or tasks that required crawling, squatting or stooping. 

The Veteran underwent a VA examination in February 2021. It was noted that the Veteran underwent a total right knee arthroplasty in 2019. He reported having constant right knee pain post surgery. He used a cane and wore a knee brace. The Veteran reported flare-ups as he had right knee swelling, pain and occasional locking. Flexion was from 0 to 85 degrees and the Veteran reported having difficulty walking, climbing stairs and standing for a prolonged period of time. There was tenderness on palpation. There was evidence of pain with weight bearing. He was unable to do repetitive use testing out of fear of pain. Pain and weakness significantly limited functional ability with repeated use over a period of time as flexion was from 0 to 80 degrees. Pain and weakness significantly limited functional ability during flare-ups as flexion was from 0 to 75 degrees. There was a reduction in muscle strength as there was active movement against some resistance (4/5). There was no muscle atrophy and no ankylosis. Stability testing was also normal and there was no history of recurrent subluxation. The Veteran's total knee replacement resulted in intermediate degrees of residual weakness, pain or limitation of motion. The Veteran regularly used a brace and constantly used a cane. The Veteran's right knee disability impacted his ability to work as he missed 0 to 1 weeks of work every 12 months as a result of his knee. 

The Veteran underwent a VA examination in May 2021. The Veteran reported having throbbing pain that felt like his knees were locking up. He had flare-ups 1 to 2 times a week with throbbing pain here he was unable to stand or walk for 30 minutes or more. Flexion was from 0 to 100 degrees. The Veteran was unable to perform repetitive use testing due to fear of pain. There was no crepitus but there was tenderness. Pain, weakness, fatigability and incoordination did not significantly limit ability with flare-ups. There was no muscle atrophy and no ankylosis. There was no history of recurrent subluxation. He had frequent episodes of joint locking. The Veteran's total knee replacement resulted in chronic residuals consisting of severe painful motion or weakness. The Veteran regularly used a cane. The Veteran's right knee disability impacted his ability to work as he missed 0 to 1 weeks of work every 12 months as a result of his knee.

Period prior to February 11, 2014 for postoperative degenerative changes

For the period prior to February 11, 2014, the Veteran currently has a noncompensable rating for degenerative changes, right knee, postoperative under Diagnostic Codes 5259-5010.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, Diagnostic Code 5010 pertains to traumatic arthritis, Diagnostic Code 5259 pertains to symptomatic removal of semilunar cartilage.

Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that a 10 percent rating for a degenerative changes, right knee, postoperative disability is warranted.

As noted above, a compensable evaluation under Diagnostic Code 5260 or 5261 requires either flexion limited to 45 degrees or extension limited to 10 degrees.

In this instance the Veteran does not meet the criteria for a zero percent rating under Diagnostic Code 5260 as a compensable evaluation under Diagnostic Code 5260 requires flexion limited to 45 degrees.

However, the evidence shows that the Veteran had painful motion of the right knee. Specifically, on VA examination in December 2011, it was noted that objective evidence of painful motion began at 55 degrees while there was also pain on movement bilaterally, crepitus bilaterally and tenderness or pain of the knees.

In light of the Veteran's competent and credible reports of pain, weakness and functional limitation to which the Board has accorded significant probative value, the Board affords the Veteran the benefit of the doubt and finds that his overall disability picture more nearly approximates the criteria for a 10 percent rating, when taking into account DeLuca factors.  

However, the Board does not find that a rating in excess of 10 percent is warranted for the Veteran's degenerative changes, right knee, postoperative disability.  

As noted above, a 10 percent rating is the maximum rating under Diagnostic Code 5259.  Additionally, under Diagnostic Code 5258, a 20 percent rating is warranted for frequent episodes of locking, pain, and effusion which were not demonstrated.  

As a result, the Board finds that a higher rating is not warranted under Diagnostic Codes 5258 or 5259.  

Additionally, as the Veteran is now being awarded a 10 rating in each knee based, in part, on pain and limitation of motion, separate disability ratings under either Diagnostic Codes 5258 and 5259 would violate 38 C.F.R. § 4.14 and the rule against pyramiding as those codes already contemplate such manifestation.  Thus, for this reason, separate ratings under these codes would again violate 4.14. 

Regarding, a rating in excess of 10 percent based on limitation of motion, the Veteran notably did not demonstrate flexion limited to 30 degrees or extension limited to 15 degrees in his right knee to warrant a rating in excess of 10 percent under Diagnostic Codes 5260 or 5261.  

Notably, on VA examination in December 2011, flexion of the right knee was from 0 to 140 degrees with pain beginning at 55 degrees.  

As a result, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran's degenerative changes, right knee, postoperative disability for the period prior to February 11, 2014.

Period prior to February 11, 2014 for lateral subluxation 

The Veteran has a current 10 percent disability rating for lateral subluxation of the right knee for the period prior to February 11, 2014 under Diagnostic Code 5257.

The Board finds that higher evaluations for "moderate" instability is not warranted based upon the evidence of record for the period prior to February 11, 2014.  

As noted above, to warrant a 20 percent disability rating under the previous criteria of Diagnostic Code 5257, moderate recurrent subluxation or lateral instability must be demonstrated.

In this instance, however, the Board finds that a rating in excess of 20 percent is not warranted for right knee instability as there is no evidence of moderate recurrent subluxation or lateral instability of the right knee.

Notably, the December 2011 VA examiner noted that stability testing was normal and there was no history or evidence of recurrent subluxation. 

The Board finds that the Veteran was competent and credible in his reporting of his right knee instability. The Board, nevertheless, ultimately places more weight on the consistent results of his VA examination, which revealed no objective evidence of moderate instability in his right knee. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999); Guerrieri v. Brown, 4 Vet. App. 467 (1993).

As the record only demonstrates at most slight instability for the right knee, an evaluation in excess of 10 percent under the old regulation of Diagnostic Code 5257 is not warranted.

Thus, a greater than 10 percent is not warranted for the right knee under the old criteria of Diagnostic Code 5257.

Thus, the Board finds that the medical evidence of record does not show a clinical diagnosis or probative evidence to support a moderate disorder.

As a result, a rating in excess of 10 percent for right knee instability not warranted for the period prior to February 11, 2014.

February 11, 2014 to June 13, 2019 

The Veteran has a current 10 percent disability rating for osteoarthritis and patellofemoral syndrome of the right knee for the period from February 11, 2014 to September 13, 2019 under Diagnostic Codes 5258.

Based on the reported symptomatology of the Veteran's limitation of motion and reported functional impairment and flare-ups at his VA examinations, the Board finds that when affording the Veteran the benefit of the doubt, that a 30 percent disability rating is warranted for the Veteran's service-connected right knee disability for the period from February 11, 2014, to June 13, 2019.

The Board notes that for a 30 percent evaluation, the Veteran must demonstrate flexion limited to 15 degrees or extension must be limited to 20 degrees. Notably, on VA examination in November 2014, flexion of the right knee was normal while on the January 2017 VA examination, flexion of the right knee was from 5 to 115 degrees while on VA examination in April 2019, flexion was from 0 to 90 degrees. 

However, on his November 2014 VA examination, the Veteran reported having tenderness, stiffness, weakness, easily fatigued, lack of endurance, swelling, heat, loss of range of motion, popping, and grinding. Additionally, on VA examination in January 2017, the examiner noted that the Veteran had constant pain, wore braces on both knees, had to curtail his activities and reported flare-ups every 2 to 3 months as he had pain and swelling. The Veteran also had functional loss as he could only drive for 1.5 hours and could no longer coach or play basketball. Finally, the April 2019 VA examiner also indicated that the Veteran reported that he could not drive more than half an hour and could not do yard work while the examination revealed evidence of pain with weight bearing, moderately severe tenderness and objective evidence of crepitus.

Based on the reported symptomatology of the Veteran's reported functional impairment at his November 2014, January 2017 and April 2019 VA examinations, the Board finds that when affording the Veteran the benefit of the doubt that a higher 30 percent rating is warranted for the Veteran's right knee disability for the period from February 11, 2014, to June 13, 2019. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. 

However, while the Board finds that the Veteran's right knee disability warrants a higher 30 percent disability rating, the evidence does not demonstrate that a rating is warranted for an evaluation in excess of 30 percent for the right knee disability for the period from February 11, 2014, to June 13, 2019.

The Board notes that the maximum rating for limited flexion of the knee does not exceed 30 percent.  Hence, Diagnostic Code 5260 is inapplicable.

As noted above, to warrant a rating in excess of 30 percent for the left knee, the Veteran would have to be found to have extension limited to 30 degrees.  

As noted above, the January 2017 VA examination report indicated that the Veteran had a range of motion from 5 to 115 bilaterally.

Aside from this treatment report, the evidence reflects that the Veteran had full extension of the right knee without objective evidence of painful motion. There is no indication that the Veteran ever had extension of the right knee limited to 30 degrees or more, even with consideration of the DeLuca factors, to warrant a disability rating in excess of 30 percent under Diagnostic Code 5261.

The Board has also considered other diagnostic codes to determine if higher evaluations are warranted for the right knee disability. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply.

The Board also finds that a separate or higher rating is not warranted under Diagnostic Codes 5258 or 5259.  Notably, the VA examinations noted that the Veteran had a right knee meniscus condition that resulted in frequent episodes of joint pain as well as weakness and stiffness.

However, as the Veteran is now being awarded 30 ratings in the right knee disability based, in part, on pain and limitation of motion, separate disability ratings under either Diagnostic Codes 5258 and 5259 would violate 38 C.F.R. § 4.14 and the rule against pyramiding as those codes already contemplate such manifestation.  Thus, for this reason, separate ratings under these codes would violate 4.14. 

Accordingly, the Board finds that a 30 percent rating, but no higher, for the right knee disability (limitation of motion) is warranted for the period from February 11, 2014, to June 13, 2019.

Period since September 1, 2020 for right total knee replacement

As noted above, an October 2021 rating decision granted an increased 60 percent rating under Diagnostic Code 5055, effective September 1, 2020 for the Veteran's service-connected right knee replacement.

Upon review of all relevant evidence of record, the Board finds that the disability picture associated with the Veteran's right knee does not meet or more nearly approximate the criteria for an evaluation greater than 60 percent under Diagnostic 5055 for the period since September 1, 2020.

Notably, a 60 percent rating is the highest rating available under Diagnostic Code 5055, absent the year following implantation of prosthesis under both the old and revised rating criteria. 

Additionally, the Board finds that the Veteran's pain upon range of motion and weakness are accounted for under Diagnostic Code 5055 and that separately applying Diagnostic Codes 5260 or 5261 would result in pyramiding. See 38 C.F.R. § 4.14; see also Esteban, 6 Vet. App. at 261-62 (1994).  

Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating.  The potential applications of various provisions of Title 38 of the Code of Federal Regulations (2014) have been considered whether or not they were raised by the veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  

Accordingly, a 60 percent rating is clearly the maximum rating assignable for the Veteran's right knee replacement with limited range of motion.  An increased schedular rating is therefore not available for the period since September 1, 2020. 

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	James A. DeFrank, 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.