Citation Nr: 21005388 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-23 509 DATE: February 1, 2021 ORDER Entitlement to a 60 percent rating for left total knee replacement is granted prior to September 25, 2020. Entitlement to a 60 percent rating for right total knee replacement is granted prior to September 25, 2020. Entitlement to a rating in excess of 60 percent for left total knee replacement since September 25, 2020 is denied. Entitlement to a rating in excess of 60 percent for right total knee replacement since September 25, 2020 is denied. FINDINGS OF FACT 1. Throughout the entire appeal period, left total knee replacement approximated chronic residuals consisting of severe painful motion or weakness. 2. Throughout the entire appeal period, right total knee replacement approximated chronic residuals consisting of severe painful motion or weakness. CONCLUSIONS OF LAW 1. The criteria for a 60 percent disability rating, but no higher, for left total knee replacement have been met prior to September 25, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5055. 2. The criteria for a 60 percent disability rating, but no higher, for right total knee replacement have been met prior to September 25, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5055. 3. From September 25, 2020, the criteria for a disability rating in excess of 60 percent for the Veteran's left total knee replacement are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5055. 4. From September 25, 2020, the criteria for a disability rating in excess of 60 percent for the Veteran's right total knee replacement are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1975 to October 1976. In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. After the hearing, the record was held open for 60 days to allow the Veteran to submit additional evidence. In January 2020, the Veteran submitted additional evidence with a waiver of AOJ consideration of the evidence. In February 2020, the claims were remanded for additional development. Increased Rating The Veteran contends that higher ratings are warranted for his right and left total knee replacements. At his hearing, the Veteran testified that he can walk one-half of a block before his knees feel unstable. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities ("Rating Schedule"), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. See 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. See 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. See 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran’s knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055, for knee replacement (prosthesis). Under Diagnostic Code 5055, a 100 percent rating is warranted for one year following the implantation of prosthesis. A 60 percent rating is warranted with chronic residuals consisting of severe painful motion or weakness in the affected extremity. The minimum rating for knee prosthesis is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. A claim for an increased rating for left and right knee replacement was received in December 2010. A May 2011 rating decision continued 30 percent ratings for left and right knee replacements. An October 2020 rating decision assigned 60 percent ratings from September 25, 2020. A March 2011 VA examination shows that the Veteran reported having trouble with his knees for many years and had undergone total arthroplasty of both knees. The Veteran reported that his knee pain and swelling had improved since his knee replacement surgeries, but he still had achiness and stiffness. The right and left knee symptoms included pain, weakness, and stiffness of both knees but no instability. He reported severe flare-ups of his knees that occurred weekly. The report noted limitations on standing and walking, as the Veteran was unable to stand for more than a few minutes and was limited to walking one city block. The Veteran reported that he frequently used a cane. A private treatment record dated in July 2014 reflects that the Veteran reported pain on the right and left side equally. His symptoms were described as moderate to severe. The Veteran had a VA examination in September 2020. He reported that he has chronic aching in his knees. The knee pain was increased with prolonged standing and prolonged sitting. The examiner assessed severe painful motion or weakness of the affected extremities. The evidence during the period shows that he had chronic residuals consisting of severe painful motion or weakness of both knees. Accordingly, the Board finds that 60 percent ratings are warranted for his left and right total knee replacement for the period prior to September 25, 2020. A 60 percent rating under DC 5055 is the maximum schedular rating available. A higher rating of 100 percent is only warranted for the 1-year period following the implantation of the prosthesis. 38 C.F.R. § 4.71a, DC 5055. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.