Citation Nr: 21077526 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 15-31 432A DATE: December 30, 2021 ORDER Entitlement to a rating in excess of 60 percent for total right knee replacement from July 1, 2019, is denied. FINDING OF FACT The Veteran's total right knee replacement is manifest by chronic residuals consisting of severe painful motion and weakness in the right leg. There is not ankylosis of the knee, flareups limit functional flexion to 40 degrees and functional extension to 20 degrees, there is no instability or subluxation, and there is no nonunion of the tibia or fibula. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for total right knee replacement have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1972 to April 1973. This appeal originates from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for right knee iliotibial band tear, post dislocation with degenerative joint disease, and assigned a 10 percent initial rating. The Board remanded the claim in November 2019 and March 2021 for additional development, including obtaining outstanding VA medical records and a new VA examination. In a September 2021 the Board issued a decision denying entitlement to a 10 percent evaluation for the Veteran's right knee disability before May 15, 2018 and denying entitlement to a TDIU before October 7, 2018. These matters are no longer on appeal. The Board also remanded entitlement to a rating more than 30 percent for the Veteran's right knee replacement to obtain a new VA examination. In November 2021 the Veteran was provided a new VA knee examination which complied with the September 2021 Board remand directives; therefore, there has been substantial compliance with these directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thereafter, RO issued a rating decision increasing the rating for the Veteran's knee replacement to 60 percent, effective July 1, 2019, and issued a Supplemental Statement of the Case denying a rating higher than 60 percent from July 1, 2019. The issue returns to the Board for further appellate consideration. 1. Increased rating for total right knee replacement from July 1, 2019 The Veteran seeks a rating higher than 60 percent for his total right knee replacement. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is in receipt of a 60 percent evaluation for his total right knee replacement, effective July 1, 2019. Prior to this, he was in receipt of a temporary total evaluation from May 15, 2018 through July 1, 2019 following the right knee replacement surgery. The Board will not address this rating period. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Diagnostic Code 5055 was amended to include resurfacing of the knee. In addition, the period of total evaluation following prosthesis was changed to four months. That is not at issue in this appeal and the post temporary total criteria for knee replacement remain the same. Both the old and new versions of Diagnostic Code 5055 require a minimum 30 percent evaluation for a knee replacement. Intermediate degrees of residual weakness, pain, or limitation of motion are to be rated by analogy to diagnostic codes 5256, 5261, or 5262. A schedular maximum 60 percent evaluation is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055. After the period of total evaluation following the knee replacement, a 60 percent rating is the maximum schedular rating available. 38 C.F.R. § 4.71a, Diagnostic Code 5055; Copeland v. McDonald, 27 Vet. App. 333 (2015). At an April 2019 VA appointment the Veteran reported right knee pain with popping and locking, but that the knee did not give out or buckle. An April 2019 x-ray showed a knee replacement hardware defect at the proximal tibia. In November 2019, the Veteran reported right knee pain that that would shoot up his right thigh when walking. He also reported that he could not fully extend the knee, but that the knee does not give out or buckle. Similar complaints are recorded in September 2020 primary care notes. The Veteran was provided a VA knee examination in May 2021. He reported no knee pain at rest with pain with excessive activity, and he regularly used a cane for pain. No flareups were noted. Initial range of motion testing showed flexion to 135 degrees and full extension to 0 degrees. Active and passive ranges of motion were the same. No evidence of pain, crepitus, or localized tenderness was recorded. There was no additional loss of function or range of motion with three repetitions. The examiner determined pain with repeated use over time would cause additional functional loss and estimated that flexion only would be limited to 130 degrees. No history of instability, subluxation, or effusion were noted. No muscle atrophy, ankylosis, or tibial and fibular impairment were found. The examiner determined the Veteran had overall mild residuals of his total right knee replacement. The Board remanded this claim to obtain a new VA examination in September 2021. In pertinent part, the Board determined the May 2021 examination was inadequate because the examiner failed to consider the Veteran's reports of right knee popping and locking and severe shooting pain. The Veteran was provided another VA knee examination in November 2021. The examiner noted the Veteran's lateral hemiarthroplasty with residuals of chronic pain, stiffness, and loss of range of motion. The Veteran reported significant problems with his knee following his replacement surgery with a hardware defect shown on x-rays, and the examiner noted a significant shortening of the Veteran's length. He reported increasing chronic pain with difficulty changing body position, standing for more than a moderate amount of time, and walking more than short distances. Flareups of variable length consisted of severe pain lancinating up from the knee to his thigh and groin that were worsened by activity. He can not run, jump, or lunge. The Veteran denied instability since the surgery but reported that the knee pops and locks. Initial range of motion testing showed flexion of the right knee to 95 degrees and full extension to 0 degrees with pain on both. Active and passive ranges of motion were the same. There was pain with weightbearing and non-weightbearing, and the examiner noted that pain ramped up quickly when the Veteran uses the knee with loss of range of motion. There was crepitus and severe pain around the knee and tibial plateau. Repetitive use testing showed flexion limited to 85 degrees with full extension. The examiner estimated flareups would cause flexion to be limited to 40 degrees and extension be limited to 20 degrees. Pain, fatigability, weakness, lack of endurance, and incoordination caused the additional limitations. The examiner also noted that the replacement joint hardware defect affects general functioning and range of motion, adding to the chronic pain. There was right lower extremity atrophy. No ankylosis was noted, and no history of right knee subluxation, instability, or ligament tears were recorded. The Veteran had been prescribed a cane for ambulation. Regarding functional impact, the Veteran cannot run, jump, lunge, climb, or squat, and he avoided stairs and ladders. Here, a rating higher than 60 percent is not warranted for the Veteran's total right knee replacement. Notably, 60 percent is the highest permanent individual rating provided by Diagnostic Code 5055 for knee replacements. The Veteran is in receipt of a 60 percent evaluation under this code for the entire appeals period. The old version of Diagnostic Code 5055 provides a higher temporary 100 percent evaluation only for one year following implantation of a knee prosthesis. The new version of the code provides the temporary 100 percent evaluation for four months following implantation. As explained above, the Veteran's temporary 100 percent evaluation was in effect from May 15, 2018 through July 1, 2019, more than one year following his surgery. Therefore, he is in receipt of the maximum benefit under the old criteria. Although it is possible to combine ratings under Diagnostic Codes 5257, 5260, and 5261, the Board notes that the Veteran's range of motion has been, at worst, estimated as 40 degrees of flexion and 20 degrees of extension during flareups. This is would warrant a 10 percent rating under Diagnostic Code 5260 and a 30 percent rating under Diagnostic Code 5261, which combines to only 40 percent. See 38 C.F.R. § 4.25. The highest rating for instability under Diagnostic Code 5257 is 30 percent. However, as reflected in the May 2021 and November 2021 VA examination, the Veteran denied having any right knee instability. The knee may also be rated by analogy using Diagnostic Code 5256 as ankylosis of the knee or Diagnostic Code 5262 as impairment of the tibia and fibula. Here, Diagnostic Code 5256 is not applicable. Ankylosis of the knee has not been demonstrated and although range of motion during flareups is severely limited, the functional equivalent of ankylosis of the right knee has also not been shown. In addition, Diagnostic Code 5256 provides for a maximum 60 percent evaluation, which is already in effect. Changing codes would be of no benefit to the Veteran. Diagnostic Code 5262 is also inapplicable, as the VA examinations of record do not show impairment of the tibia and fibula consistent with any of the criteria in the code. It is most beneficial to rate the Veteran's knee disability under Diagnostic Code 5055. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In reaching this finding, the Board has considered the factors of functional loss. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. There is no indication that the Veteran experiences any additional functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint such as to warrant a higher rating. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. The currently assigned 60 percent evaluation is consistent with chronic residuals of a knee replacement including severe painful motion, which the Veteran has. Range of motion has not shown to be limited to such an extent as to warrant a higher evaluation even considering flareups. Flareups have not been shown to result in additional limitation consistent with a higher evaluation for the right knee, as demonstrated by the November 2021 VA examination and the examiner's range of motion estimates. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the preponderance of the evidence is against an increased rating higher than 60 percent for the Veteran's service-connected total right knee replacement under Diagnostic Code 5055. Separate compensable ratings for the knee under other provisions are not for application. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J. O'CONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.