Citation Nr: 21077507 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-06 132 DATE: December 30, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee instability prior to July 15, 2019 is denied. Entitlement to a 10 percent rating for left knee arthritis with painful motion prior to July 15, 2019 is granted. Entitlement to a rating in excess of 30 percent for left knee disability following knee replacement from September 1, 2020 is denied. FINDINGS OF FACT 1. Throughout the appeal period prior to July 15, 2019, the evidence shows the Veteran's left knee disability more nearly approximated slight instability. 2. The Veteran's arthritis in the left knee was due to the service-connected condition, and the medical evidence shows that prior to the knee replacement she had complaints of painful motion, with flexion to 130 degrees and normal extension. 3. The Veteran's left knee replacement residuals consist of painful motion, limited flexion, and slightly reduced strength, but no objective evidence of instability, and no evidence of ankylosis, subluxation, or nonunion of the tibia or fibula from September 1, 2020. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left knee instability prior to July 15, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.20, 4.71a; Diagnostic Code (DC) 5257. 2. The criteria for a disability rating of 10 percent for arthritis of the left knee with painful motion prior to July 15, 2019, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.20, 4.71a; Diagnostic Code (DC) 5003. 3. The criteria for a disability rating in excess of 30 percent for residuals of left knee replacement have not been met from September 1, 2020. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1984 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision. In November 2020, the Veteran had a hearing before the undersigned Veterans Law Judge. When this case was last before the Board in January 2021, it was remanded for additional development. The case has now been returned to the Board for further appellate consideration. Subsequent to the remand, the Agency of Original Jurisdiction (AOJ) increased the Veteran's evaluation of total left knee replacement (previously rated as impairment of the knee, general, under DC 5257) from 10 percent to 100 percent effective July 15, 2019. The AOJ assigned a 30 percent evaluation from September 1, 2020. The AOJ also granted a noncompensable rating for left knee scar effective July 15, 2019. As stated above, the matter before the Board is limited to a disability rating prior to and after the temporary total disability rating. As such, the left knee scar will not be addressed. The Board finds that there has been substantial compliance with the Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Also, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. The Veteran filed a claim for an increased rating for her service-connected left knee condition on October 21, 2013. The Veteran has been in receipt of a 10 percent rating for knee under DC 5257 since 1986, and the initial characterization of her disability was dislocation of the left patella. Under 38 C.F.R. § 4.17a, DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decision is equitable and just. During the pendency of the appeal, the criteria under Diagnostic Code 5257 were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). However, effective September 1, 2020, the Veteran is no longer rated under Diagnostic Code 5257 (as she has had a knee replacement), so the amended criteria are not for consideration. Effective September 1, 2020 the Veteran is assigned a disability rating of 30 percent under DC 5055. DC 5055 lists the diagnostic criteria specifically applicable to knee replacement (prosthesis). Under DC 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. (The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30). Thereafter, the minimum rating of 30 percent is warranted for a knee replacement with intermittent degrees of residual weakness, pain, or limitation of motion, to be rated by analogy to DCs 5256, 5261, or 5262. A 60 percent rating is assignable for a knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. In Tedesco v. Wilkie, 31 Vet. App. 260 (2019), the Court held that "severe painful motion" in the criteria for a 60 percent rating under DC 5055 is not synonymous with "limitation of motion," although limitation of motion may be considered when evaluating painful motion. At the conclusion of the 100 percent evaluation period, AOJ shall evaluate resurfacing under diagnostic codes 5256 through 5262; there is no minimum evaluation for resurfacing. See DC 5055, Note. Entitlement to a rating in excess of 10 percent prior to July 2019 The Veteran stated in her Notice of Disagreement that she experiences pain in her left knee, has difficulty kneeling and getting up, and has difficulty walking a long distance. She testified at her November 2020 Board hearing that her knee gives out. After reviewing all records, the Board finds that the Veteran is not warranted a rating in excess of 10 percent for her left knee disability prior to July 15, 2019 based on instability. The Veteran's symptoms have been consistent throughout the appeal period with complaints of worsening left knee pain, stiffness, and instability. The Veteran testified that her knee gives way, and she has to use a brace for stability. The Board notes the Veteran is competent to report her symptoms, and finds her statements concerning the knee pain and giving way are credible. See Layno v. Brown, 6 Vet. App. 465 (1994). However, for the purposes of determining the severity of her left knee instability, the Board finds that the Veteran's medical records and joint stability tests findings weigh in favor of a rating for "slight" rather than "moderate" or "severe" instability or subluxation. Turning to the evidence of record, the Veteran's VA records indicate she was prescribed a knee brace in July 2013. The Veteran's records indicate she needs the brace to control her knee stability. Later, the Veteran's records noted lateral subluxation of the patella in August 2013. However, the Veteran's April 2014 VA examination found no patellar subluxation or dislocation. Each joint stability test (anterior, posterior, medial-lateral) was normal during the examination. The Veteran did not report flare-ups; however, she reported persistent, progressively worse chronic pain and stiffness in her left knee. She had a series of three intra-articular injections of Hyalgan but stated they did not make much of a difference. She stated she has lack of motion, stiffness after inactivity, feels deficient in her joint, and cannot kneel. The examination measured flexion to 130 degrees and extension to 0 degrees with no objective evidence of painful motion. The examiner did report some functional loss after repeated use, interfering with sitting, standing, and weightbearing. The examiner noted the Veteran had a left meniscal tear, but no history of a meniscectomy or tibial stress. This is corroborated by the Veteran's medical records. The Veteran argues the examiner only conducted range of motion testing while lying down and did not evaluate her difficulties standing up and kneeling. While the examiner noted the Veteran had pain, stiffness, and difficulty kneeling, the examination findings, with range of motion not tested while standing, in conjunction with the Veteran's medical records discussed below, do not result in higher than "slight" instability or subluxation. The Veteran continued to describe a feeling of subluxation in her October 2014 medical records; however, this is inconsistent with the Veteran's VA examination as well as her December 2014 records, which indicate the Veteran shows no instability in the left knee. Moreover, no further reports of instability or subluxation are reported in her medical records. The Veteran's orthopedic clinic records from March 2016 reflect occasional popping and clicking, and no knee effusion. The Veteran continued to have cortisone injections with minimal success, until undergoing knee replacement. See Medical Treatment Record Government Facility received November 2020. Finally, in May 2016, the Veteran denied knee locking or experiencing falls, and reports found no definite evidence of a suprapatellar joint effusion in the left knee. The Veteran underwent a VA examination approximately 10 days after her knee replacement. Considering how close in time that examination was to the surgery, the results would not fairly represent the severity of her disability, so the Board will not use them either for or against the claim. She was unable to complete range of motion testing. The Veteran testified in November 2020. She testified that she experienced her knee give way and used a custom-made knee brace prior to her knee replacement. The Veteran's testimony focused on her knee pain and swelling, and while she testified that she walks slowly because she is afraid she will fall, she does not report frequent episodes of falling or her knee giving out constantly. While the Veteran is competent to report her pain and experiences surrounding her knee, the Board finds the Veteran's disability picture based on the evidence taken as a whole has not more nearly approximated "moderate" or "severe" recurrent lateral instability at any point during the appeal period prior to July 15, 2019. As the above records indicate, the Veteran has had, at most, symptoms comparable to slight subluxation and instability of the left knee during the appeal period. This equates to a 10 percent rating for the left knee disability. The greater weight of the evidence is against any rating higher than 10 percent under DC 5257 for the left knee disability. The Board has considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Veteran does not have any record of ankylosis (DC 5256), frequent locking pain and effusion into the joint (DCs 5258), limitation of flexion to 45 degrees or less (DC 5260), limitation of extension to 10 degrees or more (DC 5261), any impairment of the tibia or fibula (DC 5262), or genu recurvatum (DC 5263). However, the evidence does show that she was diagnosed with degenerative changes in the knee in 2013. The 2021 VA opinion indicated that the arthritis was secondary to her service-connected patellar dislocation. It is for this reason she is receiving compensation for the knee replacement. The arthritis in the knee was present prior to the knee replacement, and, in addition to the instability evaluated under Diagnostic Code 5257, the Veteran did have consistent, credible complaints of painful motion. While she had some slight limitations of motion, it was not to a degree separately compensable under DC 5260 or 5261. However, a rating can be assigned for arthritis with painful motion that is in addition to the instability rating, and the Board finds that was warranted here. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee disability under DC 5257. In denying such a rating, 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. However, she was entitled to a separate rating as she was diagnosed with arthritis and she did have consistent, credible complaints of painful motion. Entitlement to a rating in excess of 30 percent from September 1, 2020 As discussed above, the Veteran was granted 30 percent disability after her knee replacement, the minimum rating afforded under DC 5055. A 60 percent rating is assignable for a knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. The Veteran was afforded a VA examination in February 2021. The Veteran's range of motion on flexion was to 130 degrees and 10 degrees extension. Upon repeated use, her range of motion decreased to 120. No patellar dislocation or ankylosis was noted. The examiner noted the knee replacement residuals as intermediate degrees of residual weakness, pain or limitation of motion. The current 30 percent rating contemplates intermittent degrees of residual weakness, pain, or limitation of motion, and compensates for the slight limitations she has with flexion and extension. There is no showing of weakness, nor has she complained of anything approaching severe painful motion. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for left knee disability under DC 5055 from September 1, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.