Citation Nr: 21006343 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-13 733 DATE: February 3, 2021 ORDER Entitlement to an increased 60 percent rating for total right knee replacement with degenerative arthritis is granted for the entire appeal period (excluding any periods during which a total temporary rating is in effect). Entitlement to a separate, 10 percent rating for right knee instability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s residuals of his total right knee replacement with degenerative arthritis were manifested by flexion limited to 45 degrees at worst, extension limited to 30 degrees at worst, and severe, painful motion and weakness. 2. The Veteran’s right knee disability, status post total right knee replacement, has been productive of slight instability. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a 60 percent rating for residuals of total right knee replacement with degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 2. The criteria for a separate evaluation for slight instability of the right knee, status post total knee replacement, have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1978 to June 1981. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The matter was previously before the Board in November 2018, at which time it was remanded for additional development, which was completed. The Veteran seeks a higher rating for his service-connected right knee condition. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Service connection for his right knee disability has been in effect since June 23, 1981. In June 2009, the Veteran underwent a total right knee replacement. He was awarded a temporary total rating effective June 18, 2009 and a 30 percent rating effective September 1, 2012. After undergoing a second surgery in December 2014, he was awarded a 100 percent rating effective December 9, 2014, and a 30 percent rating effective February 1, 2016. The question before the Board is whether he is entitled to a rating in excess of 30 percent for the portions of the appeal period during which he is not in receipt of a temporary total (100 percent) rating. His right knee disability is rated pursuant to Diagnostic Code 5055. Diagnostic Code 5055 provides that a 30 percent rating is the minimum rating available after prosthetic replacement of a knee joint. A 60 percent rating is warranted where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion should be rated by analogy to Diagnostic Codes 5262, 5261, or 5262. 38 C.F.R. § 4.71a. In Tedesco v. Wilkie, 31 Vet. App. 360 (2019), the Court held that “severe painful motion” in the criteria for a 60 percent rating under Diagnostic Code 5055 is not synonymous with “limitation of motion,” although limitation of motion may be considered when evaluating painful motion. For the reasons that follow, the Board finds that a rating of 60 percent is warranted for all portions of the appeal period where a temporary total rating is not in effect (i.e., from September 1, 2012 to December 8, 2014, and from February 1, 2016 to the present). The Board notes that 60 percent is the maximum allowable rating under Diagnostic Code 5055. In reaching this conclusion, the Board has considered whether it would be more beneficial to the Veteran to rate his right knee residuals under diagnostic codes for limitation of flexion, extension, and instability. However, for the reasons explained, a 60 percent rating is more beneficial than what the Veteran would receive if rated under another code, even in combination. As noted, a 60 percent disability rating is the highest schedular rating allowable under Diagnostic Code 5055, and it specifically contemplates severe painful motion and weakness. While the Board finds that the Veteran’s symptoms varied during the appeal period, overall, and affording the Veteran all reasonable doubt, his right knee disability was productive of severe painful motion and weakness. Indeed, at a December 2011 VA knee examination, the Veteran complained of daily pain and swelling. The Veteran’s treating physician wrote a letter in March 2012 stating that despite the right knee replacement, the Veteran had experienced persistent pain, swelling, and decreased range of motion, and required narcotic pain control and knee braces. In a July 2012 Disability Benefits Questionnaire (DBQ) completed by Dr. W.V.B., the Veteran reported that his right knee was “extremely painful all the time,” that the pain was worse with weight bearing and that he was “unable” to live and work with his knee pain. At a July 2014 VA knee examination, the Veteran reported the use of Oxycodone for his knee pain and said he avoided stairs due to pain and instability. He said that his knee surgery had not eliminated his knee pain and that he could not “do anything.” In a September 2014 Report of Consultation and Examination, Dr. P.Y. indicated that the Veteran’s right knee pain ranged from moderate to severe, and was productive of swelling, clicking, popping, and giving out at random times during ambulation. It was noted that the Veteran had suffered from multiple falls. Notably, because the pain in his knee had not improved, the Veteran underwent a revision total right knee replacement in December 2014. The surgical report indicates that the first right knee arthroplasty had failed. An April 2018 VA treatment reflects that the Veteran had a modified gait due to the pain in both knees that caused an unequal distribution of pressure and strain. Finally, at an October 2019 VA knee examination, the Veteran reported pain with giving out and swelling. The VA examiner indicated that the Veteran’s residuals of the right knee replacement were characterized by intermediate degrees of residual weakness, pain, or limitation of motion. Given the foregoing, and affording the Veteran the benefit of the doubt, the Board finds that the residuals of his right knee total replacement, at all times during the appeal period during which a total rating was not in effect, manifested in severe painful motion or weakness, and that a 60 percent rating is warranted. The Board has considered whether a higher rating, through a single rating or combination, could be assigned by using the rating criteria specific to the knee rather than Diagnostic Code 5055, but finds that this would not result in a higher rating at any time during the time appeal period. In this regard, the Board initially notes that as Diagnostic Code 5055 contemplates painful motion and weakness, separate ratings (in addition to rating under Diagnostic Code 5055) under Diagnostic Code 5259, 5260 or 5261 would constitute impermissible pyramiding. 38 C.F.R. §§ 4.14, 4.71a. Instead, the Board will look to see whether Diagnostic Codes other than Diagnostic Code 5055 could produce a more favorable rating. As ankylosis, dislocated semi-lunar cartilage, tibia or fibula impairment, and genu recurvatum are not shown by the evidence of record at any time, the Veteran would not be entitled to a disability rating under Diagnostic Codes 5256, 5258, 5262, or 5263. 38 C.F.R. § 4.71a. Range of motion tests throughout the appeal period have shown limitation of flexion to 100 degrees without any limitation of extension (in December 2011, VA examination); limitation of flexion to 85 degrees and limitation of extension to 15 degrees (in July 2012, DBQ); limitation of flexion to 70 degrees and limitation of extension to 30 degrees (in July 2014, VA examination report); limitation of flexion to 45 degrees and limitation of extension to 10 degrees (in September 2014, Dr. P.Y. medical report); and limitation of flexion to 60 degrees and limitation of extension to 20 degrees (in October 2019, VA examination). In October 2019, the VA examiner estimated that repeated use over time would manifest in limitation of flexion to 45 degrees and limitation of extension to 20 degrees. The Board notes that the examiner did not estimate any additional loss during flare-ups, noting that it would be mere speculation to do so; however, the Veteran specifically reported to the examiner that his flare-ups manifested in knee pain, stiffness, and swelling, but not additional range of motion loss. Even if the Board were to consider and rate limitation of extension and flexion separately based on his lowest test results (limitation to 45 degrees of flexion, and to 30 degrees of extension), such would warrant ratings of 10 percent under Diagnostic Code 5260 (limitation of flexion) and 40 percent under Diagnostic Code 5261 (limitation of extension). These ratings would combine to less than the 60 percent currently assigned under Diagnostic Code 5055. The Board, however, does find that a separate rating for the right knee based on lateral instability is warranted under Diagnostic Code 5257 for the entirety of the appeal period. In so finding, the Board notes that the Veteran has consistently reported recurrent problems with instability and feelings of “giving out.” The October 2019 VA examiner confirmed the presence of subluxation and instability, which was noted as being “slight” on the right side. Thus, the Board finds that a separate, 10 percent rating under Diagnostic Code 5257 is warranted. The Board adds that assigning a rating for instability under Diagnostic Code 5257 separate from the 60 percent rating under Diagnostic Code 5055 based on the unique facts of this case does not violate the anti-pyramiding rule. See 38 C.F.R. § 4.14. This is because the symptomatology and manifestations are not duplicative or overlapping. The 60 percent rating under Diagnostic Code 5055 contemplates the Veteran’s painful motion and weakness in the joint; the symptoms of subluxation and instability represent separate symptomatology that are properly rated separately under Diagnostic Code 5257. In sum, the Board finds that a rating of 60 percent under Diagnostic Code 5055, and a rating of 10 percent under Diagnostic Code 5257 are warranted for the entire appeal period, excluding any periods during which a total temporary rating is in effect (i.e., from September 1, 2012 to December 8, 2014, and from February 1, 2016 to the present). The Board wishes to make clear that all evaluations remain controlled by the amputation rule under 38 C.F.R. § 4.68, and may be subject to restriction when combined. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability is remanded. During the pendency of the appeal, the Veteran has raised entitlement to a TDIU, to include as due to his right knee disability. The Veteran submitted a VA Form 21-8940 in May 2013 indicating he because too disabled to work in 2009. However, subsequent VA treatment records document that the Veteran is working, at least part-time, as a mental health technician. See an April 13, 2018 VA Interdisciplinary Pain Management Consult. An October 31, 2019 VA Emergency Department Note also indicates that the Veteran was referred to the emergency room after his co-workers saw him looking ill. On remand, the Agency of Original Jurisdiction (AOJ) should request that the Veteran provide, for the entire appeal period, evidence pertaining to the Veteran’s employment and annual income each year he claims to have been precluded from gainful employment. Information such as tax returns during these years and/or statements from employers may be beneficial in supporting his claim. Additionally, to the extent that the Veteran contends that his employment has been marginal, to include as a result of existing in a protected work environment, he should provide an explanation as to the specific conditions of his employment that made it so. The matters are REMANDED for the following action: 1. Request that the Veteran submit a statement or report providing detailed information regarding employment and income history for each year in which he claims to have been precluded from maintaining gainful employment due to service-connected disabilities. Invite the Veteran to submit additional supporting documentation including tax returns or statements from his current or former employers. For any employment that the Veteran considers to be marginal as due to a protected work environment, request that the Veteran provide a detailed explanation as to what factors characterize the work environment as protected. (Continued on Next Page) 2. Then readjudicate the issue on appeal. If the benefit sought remains denied, send the Veteran and his representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.