Citation Nr: 21005990 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-58 917 DATE: February 3, 2021 ORDER Entitlement to an increased rating of 60 percent for a left knee total replacement is granted. Entitlement to a TDIU effective the date of this decision is granted. REMANDED Entitlement to service connection for a low back disability (to include lumbosacral spondylosis with IVDS) is remanded. Entitlement to a TDIU on an extraschedular basis prior to schedular eligibility is remanded. Entitlement to service connection for an acquired psychiatric disorder secondary to service-connected disabilities is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran has experienced chronic residuals of severe painful motion due to his left knee total replacement. 2. The Veteran meets the schedular eligibility for a TDIU as of the date of this decision and the evidence establishes that his service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 60 percent, but no higher, for a left knee replacement have been met. 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to April 1981, and from July 1987 to September 2003. These matters are on appeal to the Board of Veterans’ Appeals (Board) from a December 2013 rating decision. A hearing was held by the undersigned Veterans Law Judge in July 2019. The claims were subsequently remanded in a November 2019 Board decision. 1. Entitlement to an increased rating for a left knee total replacement Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. §1155; 38 C.F.R. § 4.1. 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 Board has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant).  Where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Therefore, the Board will only consider evidence submitted one year prior to the filing of the claim for an increased rating, rather than from the initial assignment. The Veteran’s claim for an increased rating was received on January 24, 2013. Therefore, the appeal period begins January 24, 2012. The Veteran currently has a 30 percent rating for minimum residuals following a total knee replacement under Diagnostic Code 5055 as of May 1, 2013. Prior to that date the Veteran had a temporary 100 percent rating following the implantation of the prosthesis. Pursuant to Diagnostic Code 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, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. To give the Veteran every consideration in connection with the matters on appeal, the Board will also consider all other potentially applicable diagnostic codes under 38 C.F.R. § 4.71a in rating the Veteran’s left knee disability during the appeal period. See, e.g., Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case”), and Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (one diagnostic code may be more appropriate than another based on such factors as the Veteran’s relevant medical history, his current diagnosis, and demonstrated symptomatology). Under Diagnostic Code 5256, a 40 percent rating is available for ankylosis of the knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for ankylosis of the knee in flexion between 20 degrees and 45 degrees. A 60 percent rating is assigned for extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more. Under Diagnostic Code 5257, other impairment of the knee with recurrent subluxation or lateral instability is assigned a 10 percent for slight findings, a 20 percent for moderate findings, and a 30 percent for severe findings. Under Diagnostic Code 5258, a 20 percent rating is available for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Under Diagnostic Code 5259, a 10 percent rating is warranted for removal of semilunar cartilage, symptomatic. The rating criteria provided for limitation of motion of the knee and leg are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides ratings for limitation of flexion. Flexion of either leg limited to 60 degrees is noncompensable, flexion limited to 45 degrees merits a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent evaluation, and a 30 percent evaluation requires that flexion be limited to 15 degrees. Diagnostic Code 5261 provides ratings of 0 percent for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. For rating purposes, normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5262, a 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion, requiring brace. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See Lyles v. Shulkin, 29 Vet. App. 107 (2017).  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.”).  The Veteran has undergone two VA examinations within the appeal period. In his July 2016 examination, ranges of motion (ROM) were unable to be tested due to pain. The examiner indicated she believed the Veteran’s subjective complaints of pain to be out of proportion to objective findings and noted that he displayed poor effort. She observed him extending and bending his leg without difficulty while tying his shoes and transferring from chair to table. There was no ankylosis; left knee stability testing was indicated but unable to be performed due to pain. His meniscus was removed in 2003. Of note, the Veteran has objected to the adequacy of this examination and the Board has deemed the examination inadequate insofar as the examiner failed to express the severity of his disability in terms of ROM and failed to comply with the requirements of 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016). As such, the Board affords this opinion little probative value. In his February 2020 examination, his most reduced flexion and extension was to 85 degrees with repeated use over time. The Veteran endorsed constant pain, rating it an 8 out of 10. Pain was noted to cause a functional loss. No ankylosis, recurrent subluxation or effusion, or lateral instability was indicated. Regarding the 2010 knee replacement and 2003 meniscectomy, the examiner indicated that the residuals were chronic pain in the left knee. He uses a cane constantly. In his hearing, the Veteran explained he has undergone several left knee surgeries, to include procedures following his 2010 total knee replacement. He reported that his doctors had recommended amputation, which is corroborated by the medical records. He has been on pain medication for over a decade. According to the Veteran, he is unable to straighten his leg completely upon standing. His knee has progressively worsened and he is unable to be active anymore. In an April 2012 letter, the Veteran’s treating provider explained that following his knee replacements, he has difficulty with range of motion, especially extension, and weakness. He is able to walk with the use of walking aides. A May 2012 record reflects that the Veteran lacks 5 degrees in extension and can flex to approximately 90 degrees. A January 2014 record reflects decreased range of motion (30 degrees flexion), and the use of a cane or walker to ambulate. In April 2016, the Veteran’s passive ROM in flexion was to 70 degrees with extension to 25 degrees. In a later appointment that month, associated symptoms of decreased mobility, joint instability, joint tenderness, swelling, weakness, and stiffness were noted; however, it is unclear if these symptoms were referring to the right knee or the left. In May 2016, the Veteran’s passive left knee ROM was to 45 degrees flexion and 20 degrees extension. The evidence reflects residuals of severe chronic pain. Several medical records reflect complaints of chronic pain – often rated as a 7 or 8 out of 10 – that worsens with activity. In a functional rating index the Veteran completed himself in January 2014, he indicated severe, constant pain that worsens with activity such as lifting, walking, or standing. Thus, the most beneficial rating for the Veteran is a 60 percent rating under Diagnostic Code 5055 for chronic residuals of severe painful motion following a knee replacement. A higher rating is not warranted as there is no amputation. In considering other applicable diagnostic codes, the evidence of record reflects various ranges of motion; however, at most, the Veteran would be entitled to 10 percent under Diagnostic Code 5260 and 30 percent under Diagnostic Code 5261. There is no evidence of ankylosis, malunion or nonunion, recurrent subluxation or lateral instability, or genu recurvatum. While there is one notation of instability in the record, it is unclear if it is in reference to the left knee. The Veteran has had his meniscus removed; however, a rating under Diagnostic Code 5259 only warrants 10 percent. Even assuming the Veteran would be entitled to a separate rating under Diagnostic Codes 5260, 5261, and 5259, a combination would not equate to a rating above 60 percent. In sum, a 60 percent rating for chronic residuals of severe painful motion following a knee replacement is the highest rating available to the Veteran. 2. Entitlement to a TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Prior to this decision, the Veteran’s ratings for his service-connected disabilities were as follows: left knee total replacement (30 percent); cervical foraminotomy (10 percent); radiculopathy of the right upper extremity (10 percent); degenerative joint disease of the right knee (0 percent); left inguinal hernia repair (0 percent); hepatitis C (0 percent); right forearm scar (0 percent); leukoplakia of the lower lip (0 percent); and scar of the left shoulder for basal cell carcinoma (0 percent). As there were no disabilities rated at 40 percent or more, he did not meet the schedular criteria. As of the date of this decision, however, the Veteran’s left knee replacement rating is increased to 60 percent. Thus, as he has at least one disability rated at 40 percent or more and his combined rating is 70 percent, he now meets the schedular criteria and the relevant inquiry is whether he is unemployable as a result of his service-connected disabilities. The evidence shows the Veteran has not worked since his knee replacement in July 2010. According to his VA Form 8940, the Veteran most recently worked in housekeeping performing janitorial duties at a naval hospital. His MOS in service was a tugmaster and he continued to work as a tugmaster post-service until 2009. He also has experience as a commercial truck driver. A December 2012 medical record indicates the Veteran’s chronic pain is affecting his routine activities of daily living and preventing him from work. In an April 2013 pain questionnaire, the Veteran explained that he has had two surgeries in his upper neck and has pain and numbness in the dominant right arm and hand. He has had several surgeries on his left knee. Activities such as bending, walking, standing up or sitting down causes pain in the knee and arm. He takes pain medications which cause confusion, forgetfulness, dizziness, rendering him unable to drive. His medications also affect his appetite and his ability to sleep. The Veteran wrote that he is unemployable “due to excruciating pain and pain medication.” In January 2014, he completed a functional rating index and indicated he was unable to work, as well as conduct physical activity such as lifting, walking, or standing without pain. He described severe, constant pain. In an April 2013 statement, the Veteran explained that due to multiple surgeries he has been on pain medication for the prior 3 years. He has been unable to work due to the steady decline in his health since the first knee surgery in 2010. In the July 2016 VA examinations, the examiner opined that the Veteran’s right knee disability should not preclude light duty or sedentary employment, and the left knee disability should not preclude sedentary employment. Regarding the Veteran’s neck disability, the examiner opined that this disability alone should not preclude employment as he has returned to baseline following surgery, to include the residuals of his right upper extremity radiculopathy. The examiner noted there is no significant limitation in ROM nor any significant neurovascular deficit, and the Veteran was gainfully employed for several year after his neck surgeries. The Social Security Administration found the Veteran too disabled to work as of July 26, 2010, the date of his left knee replacement. The primary diagnosis was a back disorder (disc/degenerative) and the secondary diagnosis was inflammatory arthritis. The SSA evidence includes the Veteran’s right arm pain and hand paralysis, his inability to straighten his left knee and the constant pain that worsens with activity. He is unable to dress without assistance. In a function report, the Veteran states that he is prescribed heavy narcotics which cause confusion and dizziness; as a result, his wife monitors his personal hygiene, keeps track of his medications, and handles all financial matters. In his February 2020 VA examination for his knee, the examiner determined that the Veteran is unable to walk more than 25 minutes for the left knee and 45 minutes for the right. He can only stand in one position for 15 minutes on the left knee and 45 minutes on the right. He can only sit in one position for 35 minutes. As of the date of this decision, the Board finds that the Veteran is unable to work due to his service-connected disabilities. While his disabilities are physical in nature, the records reflect that the Veteran is prescribed several heavy narcotics that would inhibit his ability to complete required tasks unimpaired. As a result, the Veteran relies on his spouse for completion of most routine daily activities such as personal hygiene, as well as providing transportation and handling financial matters. Thus, his prior work experience as a tugmaster, commercial truck driver, and housekeeper are no longer viable employment options. As the Veteran is precluded from both physical and sedentary employment, entitlement to a TDIU is granted as of the date of this decision. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability (to include lumbosacral spondylosis with IVDS) The Veteran contends his low back disability is related to treatment for his back in service. Alternatively, he contends his back disability is caused or aggravated by his service-connected left knee disability. In the November 2019 Board decision, the claim was remanded for a VA examination. In the remand directives, the examiner was requested to opine whether it was at least as likely as not that the Veteran’s low back disability (1) began during active service or is related to the April 1988 in-service complaint of back pain; (2) manifested within one-year after discharge from service; (3) was noted during service with continuity of the same symptomatology since service; or (4) proximately due to OR aggravated beyond its natural progression by the service-connected left knee disability. In reaching his or her conclusions, the examiner was asked to specifically consider and address a March 2011 medical record indicating that the Veteran’s low back pain began a decade ago and a March 2016 medical record in which his treating provider noted that the Veteran’s knee issues are severely affecting his gait disturbance which may be contributing to his back pain. The February 2020 examiner provided a negative opinion for each of the above; however, no rationale is provided other than stating there is an absence of objective evidence. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Moreover, the examiner did not specifically address the March 2011 and 2016 medical records as directed. As the examination is inadequate in this regard, remand is required for a new opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate). 2. Entitlement to a TDIU on an extraschedular basis According to 38 C.F.R. § 4.16 (b), it is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director of the VA Compensation and Pension Service for such extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). See Bowling v. Principi, 15 Vet. App. 1 (2001). While the Veteran only meets the schedular criteria as of the date of this decision, he may potentially be entitled to a TDIU on an extraschedular basis pursuant to in 38 C.F.R. § 4.16 (a) prior to meeting schedular eligibility. As explained above, the Veteran has not worked since July 2010 following his left knee replacement. As the Board is unable to consider entitlement to an extraschedular TDIU on an initial basis, it finds remand is warranted for referral to the Director of the VA Compensation and Pension Service. 3. Entitlement to service connection for an acquired psychiatric disorder secondary to service-connected disabilities In St. Vincent Primary Care records within the appeal period, “anxiety disorder due to a general medical condition” is listed as a diagnosis. As a claim for secondary service connection has been reasonably raised by the record, remand is required for initial AOJ adjudication. See 38 C.F.R. 3.155 (d)(2); see also Bailey v. Wilkie, No. 19-2661, 2021 WL 45679 (Jan. 6, 2021). The matters are REMANDED for the following action: 1. Obtain a VA opinion with an appropriate clinician (if possible, an orthopedic specialist) for the Veteran’s low back disability. The entire claims file, to include a copy of this Remand, should be made available to, and be reviewed by, the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician. The examiner is asked to opine whether the Veteran’s low back disability at least as likely as not (1) began during active service, to include related to his April 1988 complaint of back pain, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. When rendering an opinion, the examiner is asked to consider the March 2011 medical record whether the Veteran indicated that his low back pain began a decade ago. The examiner is also asked to opine whether the Veteran’s low back disability is at least as likely as not (1) proximately due to the service-connected left knee disability, or (2) aggravated beyond its natural progression by the service-connected left knee disability. When rendering an opinion, the examiner is asked to consider the March 2016 medical record where the Veteran’s private practitioner noted that the Veteran has serious continued left knee issues that are severely affecting his gait and the gait disturbance may be contributing to his continued back pain. The examiner is reminded that any opinions expressed should be accompanied by a complete rationale. 2. Refer the issue of entitlement to an extraschedular TDIU prior to meeting schedular eligibility to the Director of VA Compensation and Pension Service. 3. Develop and adjudicate a claim for entitlement to service connection for an acquired psychiatric disability secondary to the Veteran’s service-connected disabilities. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.