Citation Nr: 21009274 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-33 968 DATE: February 22, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for service-connected right knee degenerative joint disease prior to January 26, 2012 is denied. Entitlement to a separate 10 percent rating for right knee instability prior to January 26, 2012 and then from March 31, 2014 to the present is granted FINDINGS OF FACT 1. Prior to January 26, 2012, the Veteran’ right knee range of motion was 15 degrees extension to 85 degrees flexion with pain during flare-ups. 2. Slight lateral instability was manifested prior to a total right knee replacement on January 26, 2012 and then first again manifested in the prosthesis on March 31, 2014; at no time during the period of appeal was there moderate lateral instability or recurrent subluxation. CONCLUSIONS OF LAW 1. Prior to January 26, 2012, the criteria for an evaluation in excess of 20 percent for limitation of motion of the right knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5260, 5261 (2020). 2. The criteria for a rating in excess of 10 percent for right knee instability prior to January 26, 2012 are not met, but a separate rating of 10 percent effective from March 31, 2014, for right knee instability post-prosthesis placement have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1968 to May 1970 including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board denied the Veteran’s claims in a September 2018 decision. The Veteran appealed to the United States Court of Appeals for Veteran’s Claims (Court). In September 2019, the Court vacated that portion of the decision that denied an initial rating in excess of 10 percent for a right knee disability from February 23, 2011 to January 26, 2012 and for a separate compensable rating for right knee instability and remanded the claims for compliance with a Joint Motion for Partial Remand. The Court also vacated that portion of the Board’s decision that denied service connection for sleep apnea. The RO granted service connection in October 2020; and that issue is no longer on appeal. In March 2020, the Board remanded the remaining claims to the RO for additional development, including a new VA examination and retrospective VA opinion. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Increased Rating 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. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings will be considered and discussed, as warranted. 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. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, 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). Rating decision dated April 3, 2012 assigned a 100 percent evaluation from January 26, 2012, the date of a right knee total replacement surgery, to February 28, 2013, the last day of the month following a one year, 100 percent rating following implantation of the prosthesis. Rating decision dated July 14, 2014 assigned a 60 percent evaluation effective July 12, 2013 based on post-prosthetic replacement with chronic residuals of severe pain and post-prosthetic replacement with chronic residuals of severe weakness. Then, an October 2020 rating decision increased the Veteran’s 10 percent rating effective from February 23, 2011 to January 26, 2012 to a 20 percent rating, effective from February 23, 2011 to January 26, 2012. Evidence In March 2011, the Veteran was afforded a VA examination. The Veteran reported pain, weakness, stiffness, clicking and popping of the right knee and intermittent swelling of the right knee. The Veteran stated he took medication and that flare-ups occurred weekly. He indicated flareups were caused by cold weather, change in weather or weight bearing activities. The Veteran used a cane as an assistive device to help him ambulate. The Veteran reported that he worked full time at a home improvement store but had to take off about three weeks within that last year, due to his right leg and knee condition. The examiner noted that the Veteran’s knee condition had worsened and that the Veteran had not undergone any arthroscopies or surgeries. There was no ankylosis of the knee. The range of motion of the knee was 0-100 degrees with tenderness at 90 degrees for flexion and 0 degrees for extension with tenderness at 10 degrees. The examiner indicated that there was increase in pain without additional weakness, excess fatigability, incoordination, lack of endurance, or additional loss in range-of-motion with repetitive use. The examiner also was unable to without resorting to mere speculation, determine additional limitation due to repetitive use during a flare up. Also, there was no effusion, swelling, erythema, warmth, crepitus, but there was snapping/popping, grinding, sub-patellar tenderness, tenderness to palpation and MCL- trace laxity of the right knee. Rating decision dated April 3, 2012 assigned a 100 percent evaluation from January 26, 2012, the date of a knee replacement surgery, to February 28, 2013, the last day of the month following a one year, 100 percent rating following implantation of your prosthesis. Rating decision dated July 14, 2014 assigned a 60 percent evaluation effective July 12, 2013 based on post-prosthetic replacement with chronic residuals of severe pain and post-prosthetic replacement with chronic residuals of severe weakness. In a January 2012 VA discharge summary, a clinician noted the Veteran had underwent a right total knee arthroplasty and was diagnosed with right knee arthritis. See February 2012 Capri, p.1. There were several VA treatment records noting the Veteran’s physical therapy on his right knee. In a March 2012 physical therapy note, the Veteran was using a wheeled walker. Heat was applied to the Veteran’s right knee prior to exercises and ice was applied to right knee after exercises were completed. The therapist indicated passive right knee flexion was 42 degrees. See March 2012 Capri, p.17. In a March 2012 anesthesia pre-operation note, the Veteran was given a right knee manipulation. The Veteran reported a swollen knee. See March 2012 VAMC Other Output/ Reports, p.9. In a November 2012 orthopedic clinic note, the Veteran reported that his knee had not been the same since his January 2012 surgery. The Veteran stated he continued to have constant pain in the knee and his motion had decreased even since his March 2012 manipulation. The Veteran indicated that he was working at a store and was unable to do some of his job duties due to his knee. The Veteran stated that he could not sit for longer than 30 minutes and that he felt like his knee was worse than it was before the surgery. The clinician indicated that an exam revealed the surgical incision was well healed, but he was 10 degrees short of full extension with flexion at about 85 degrees. The clinician also noted that the Veteran had a reproducible click with range of motion. The clinician indicated that the possibility of making the Veteran better was fairly small unless he had an infection or malrotation; which he suspected the Veteran did not have. The clinician did provide him a plan for a 4-hour work shift instead of 8 hours and indicated that he was to work on ground level only. No work on ladders or stairs. See February 2014 Medical Treatment Record-Government Facility, p.25. In a May 2013 orthopedic clinic note, the Veteran was seen for a complaint related to pain after a right total knee arthroplasty. The clinician indicated that the Veteran a right knee arthoplasty performed on January 26, 2012 and underwent a right knee manipulation under anesthesia on March 22, 2012. The Veteran reported that his range of motion of the right knee was still approximately 0 to 90 degrees; that he had some hyperemia and stated that his right knee residual pain was a 2/10. The Veteran also reported that he worked at a store and he could only be on his feet for four hours, before having to sit down. The clinician found that the Veteran had some right total knee arthroplasty, his right knee was significant for erythema and moderate global effusion around his right knee. The clinician noted the Veteran had a moderate global effusion around his right knee; he was stable to varus, valgus, anterior and posterior stress. The Veteran had a +2 dorsalis pedis pulse, +1 posterior tibial pulse, intact extensor hallucis longus and flexor hallucis longus strength 5/5. The clinician indicated the Veteran had residual pain in his right total knee arthroplasty and noted the etiology of his pain was unknown. The clinician recommended that he limited his time on the floor at work to 4 hours. See February 2014 Medical Treatment Facility Record-Government Facility, p.11. In March 2014, the Veteran was afforded another knee and lower leg VA examination. The examiner indicated that the Veteran had a right knee condition- right knee s/p TKA with residual degenerative joint disease. The examiner noted the Veteran had a right knee injury that failed to respond to treatment, so in January 2012 he underwent a total knee arthroplasty. But the Veteran ended up having stiffness in his right knee joint and underwent manipulation of the right knee joint in March 2012. However, the examiner noted that the Veteran still continued to experience pain, stiffness and decreased range of motion. The Veteran stated that he had a degree of instability primary to the anterior aspect of the right knee and flare-ups occurred with increased weightbearing, cold weather or changes in weather. The Veteran reported that he worked at a store until June 2013 but difficulty with ambulation and weightbearing made it difficult to maintain employment. The Veteran indicated his right knee had worsened. The Veteran reported flare-ups of the knee of increased pain and decreased range of motion. The initial right knee range of motion was 80 degrees for flexion with pain beginning at 70 degrees and extension at 10 degrees with pain beginning at 15 degrees. Repetitive use testing revealed right knee flexion was at 75 degrees and extension at 10 degrees. The Veteran had additional limitation of range of motion after repetitive use testing and had functional loss or impairment of the knee. This included less movement than normal; pain on movement; disturbance of locomotion and interference with sitting, standing and weight-bearing. The Veteran had tenderness or pain on palpation and muscle strength was a 5/5. Joint stability tests revealed anterior instability at 1+ (0-5 millimeters). There was no history of recurrent patellar subluxation/ dislocation and the Veteran never had shin splints, stress fractures or any other tibial/ fibular impairment. The Veteran never had any meniscal conditions, or arthroscopic or other knee surgery not mentioned. The Veteran constantly used a cane as an assistive device. The examiner noted that the condition impacted the Veteran’s ability to work; because he had difficulty with prolonged weight bearing, bending, lifting, carrying, twisting, climbing, squatting, kneeling and the Veteran had to ambulate with a cane for mobility. The examiner stated that he was unable to determine whether pain, weakness, fatigability or incoordination could significantly limit functional ability during flare-ups or repeated use over time. Also, could not determine degrees of additional range of motion loss due to pain on use or during flare-ups. In August 2019, the Veteran was afforded another knee and lower leg examination. The examiner indicated that the Veteran’s knee was painful and was swollen. The Veteran had to shift his weight to his left side since his right knee was not healing correctly. The Veteran’s initial range of motion for the right knee was 0 to 90 degrees for flexion and 90 to 0 degrees for extension. The range of motion contributed to functional loss since the Veteran was unable to kneel or squat. There was pain with weight bearing but no crepitus. There was objective evidence of localized tenderness or pain on palpation located at the joint line that was mild in severity. The Veteran was able to perform repetitive use testing but there was no additional loss of function or range of motion after three repetitions. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. The range of motion was 0 to 85 degrees for flexion and 85 to 0 degrees extension. Muscle strength testing for the right knee was a 5/5. The Veteran did not have muscle atrophy or ankylosis. There was no history of recurrent subluxation or lateral instability. There was no joint instability. The Veteran did not ever have recurrent patellar dislocation, “shin splints”, stress fracture or any other tibial or fibular impairment or meniscus condition. The Veteran used a cane as an assistive device constantly. The condition impacted the Veteran’s ability to perform occupational task; because carrying, lifting, pushing, squatting and crawling were limited. The examiner indicated that there was no evidence of pain on passive range of motion testing or non-weight bearing testing of the right knee. In August 2020, the Veteran was afforded another knee and lower leg examination. The examiner indicated that the Veteran had a diagnosis of total knee arthroplasty of the right knee and right knee instability. The examiner noted that the Veteran’s condition began in 2011. The Veteran had a right total knee arthroplasty in January 2012. The Veteran reported that he had painful motion of the right knee daily ever since the replacement. Since onset the condition worsened. At the time of the examination the Veteran was on medication, using a cane and had, had surgery. The Veteran reported flareups of the knee with any prolonged standing. The Veteran did not have functional loss or functional impairment including limited to repeated use over time. The initial range of motion was to 90 degrees for flexion and to 10 degrees for extension. The range of motion itself did not contribute to functional loss. There was objective evidence of localized tenderness or pain on palpation. The severity was moderate tenderness over the anterior knee. There was evidence of pain on weight bearing. There was no evidence of crepitus. There was no additional loss of function or range of motion after three repetitions for the right knee. The Veteran was not examined immediately after repetitive use over time and the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination did significantly limit functional ability with repeated use over a period of time and flare-ups. For repeated use over time and flare-ups for the right knee; range of motion was 15 to 85 degree for flexion and 85 to 15 degrees for extension. Muscle strength testing revealed a 4/5 for both flexion and extension of the right knee. The Veteran did not have muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability but there was recurrent effusion of the right knee. The examiner indicated that the Veteran had effusion on the examination and reported intermittent knee swelling. There was joint instability, with 1+(0-5 millimeters) of medial and lateral instability. The Veteran did not ever have recurrent patellar dislocation, “shin splints”, stress fracture or any other tibial or fibular impairment. The Veteran had a meniscal tear and frequent episodes of joint locking. After the Veteran’s right knee surgery, he had a loss of range of motion, painful motion and weakness. The Veteran used a cane constantly to help assist with mobility and balance. The examiner indicated that the Veteran’s condition impacted his ability to work, since he could not stand for prolonged periods. Then in September 2020, the examiner was asked to provide an addendum VA knee and lower leg examination/ opinion. The examiner was asked because the August 2020 medical opinion was deemed insufficient since the BVA remand requested an opinion for the right knee disability and retrospective opinion for the period prior to January 26, 2012. The examiner indicated in the addendum opinion that it was in his opinion that the period prior to January 26, 2012 there was an estimated range of motion for right knee functional loss during a flare-up and after repeated use over time was flexion at 15-85 degrees and extension at 85-15 degrees. Right Knee Instability The Veteran contends that he is entitled to a compensable rating for his right knee instability. As discussed in greater detail above, the Veteran's service-connected right knee is currently rated based on range of motion but not instability. The Veteran contends that his right knee instability has worsened, and a separate compensable rating for right knee instability is warranted. Herein, the Board finds that a compensable rating for right knee instability prior to March 31, 2014 not warranted but a rating of 10 percent, but not higher, is warranted from that date. The Veteran reported a worsening of his right knee disability and increased symptoms of right knee instability. The Veteran is competent to report to such lay observable symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted above under Diagnostic Code 5257, the criteria for impairment of the knee other than ankylosis, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. C.F.R. § 4.71a, Diagnostic Code 5257 (2017). Notably, the Veteran’s residuals of a total right knee replacement has been rated under Diagnostic Code 5055 since January 26, 2012. These criteria address chronic residuals consisting of painful or limitation of motion and weakness but not lateral instability that may occur with the prosthesis. Therefore consideration of Diagnostic Code 5257 is warranted. Herein, the Board has granted a compensable 10 percent rating for right knee instability prior to January 26, 2012 and then effective March 31, 2014 forward. The Board finds based on the evidence of record the existing 10 percent rating, but not higher, is warranted for right knee slight instability as noted in the 2011 examination of “trace instability” and effective March 31, 2014, the date of one of the Veteran's VA examinations, a separate 10 percent rating for instability post-prothesis placement is also warranted. The March 31, 2014 VA examiner objective measurements noted right knee instability with joint instability, revealed anterior instability at 1+ (0-5 millimeters). The Veteran did not have a history of recurrent subluxation, ever have recurrent patellar dislocation, “shin splints”, stress fracture or any other tibial or fibular impairment. The Board acknowledges that the August 2019 VA examination indicated that there was no joint instability; however, just a year later in August 2020 VA examination affirmed the March 2014 VA examination, indicating that there was joint instability that warrants a 10 percent rating. From February 23, 2011 to January 26, 2012 and from March 31, 2014 forward, ratings in excess of 10 percent are not warranted for right knee instability. The evidence of record does not indicate moderate recurrent subluxation or lateral instability. A March 2011 examination trace revealed trace laxity of the right knee, which indicates slight instability. VA treatment records note reports of instability and stability testing revealed joint instability, with 1+(0 to 5 millimeters) of medial and lateral instability of the right knee at the March 2014 and August 2020 VA examinations. And the examiner only noted a history of slight lateral instability. Such is evidence of slight instability. The Board finds that an increased 20 percent rating for right knee instability is not warranted for either period as there is no evidence of moderate recurrent subluxation or lateral instability. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Herein, the Board grants a separate compensable rating of 10 percent for right knee instability effective March 31, 2014. The preponderance of the evidence is against finding that a separate 20 percent for right knee instability is warranted, for the period of February 23, 2011 to January 26, 2012 and prior to March 31, 2014. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. Right Knee Degenerative Joint Disease The Veteran contends his disability warrants a higher rating in excess of 20 percent prior to January 26, 2012. In this regard, during the period prior to January 26, 2012 the Veteran's right knee flexion was at worst to 15 to 85 degrees with pain, and when rated by analogy under Diagnostic Code 5260 such limitation of flexion would be a noncompensable rating. In addition, under diagnostic code 5261 extension was at worst 85 to 15 degrees. Accordingly, the criteria for a rating higher than 20 percent for the period prior to January 26, 2012, is not met under either DC 5260 or 5261. The Board has considered whether other Diagnostic Codes are applicable herein; however, the competent medical opinions of record fails to disclose that the current severity of the Veteran's service-connected right knee degenerative joint disease would require analysis through Diagnostic Code 5256 for ankylosis of the knee, Diagnostic Code 5257 for other impairment, including recurrent subluxation or lateral instability, Diagnostic Code 5258 for dislocated semilunar knee cartilage with frequent episodes of "locking," pain, and effusion into the joint, Diagnostic Code 5259 for symptomatic removal of the semilunar knee cartilage, Diagnostic Code 5262 for impairment of the tibia and fibula, and Diagnostic Code 5263 for genu recurvatum. Therefore, the Board finds that DC 5256, 5260, DC 5263 (genu recurvatum), DC 5258 (cartilage, semilunar dislocated with frequent episodes of locking pain and effusion in the joint), or DC 5259 (removal of symptomatic semilunar cartilage) are not applicable in this instance. No treatment record, or any report of VA or private examination demonstrate any objective finding of impairment of the tibia and fibula or genu recurvatum, or cartilage, semilunar dislocated with frequent episodes of locking pain and effusion in the joint, or removal of symptomatic semilunar cartilage. In sum, the Board finds that the Veteran's right knee degenerative joint disease based on range of painful motion does not warrant an evaluation in excess of 20 percent prior to January 26, 2012 under DC 5260, 5261, or any other diagnostic codes considered. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.