Citation Nr: 21009583 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-31 351 DATE: February 22, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease, post meniscectomy (right knee DJD condition) is denied. Entitlement to a disability rating in excess of 10 percent prior to June 3, 2020, for left knee degenerative joint disease, post meniscectomy (left knee DJD condition) is denied. Entitlement to a disability rating in excess of 10 percent for right knee post cartilage removal is denied. Entitlement to a disability rating in excess of 10 percent prior to June 3, 2020, for left knee post cartilage removal is denied. REMANDED Entitlement to a disability rating in excess of 30 percent from August 1, 2021, for left knee DJD condition, status post total knee replacement (left knee replacement) is remanded. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran’s right knee DJD condition manifest as objective evidence of pain with full or near full range of motion (ROM). 2. Prior to June 3, 2020, the Veteran’s left knee DJD condition manifest as objective evidence of pain with full or near full ROM. 3. Throughout the entire appeal period, the Veteran’s right knee post cartilage removal manifests as removal of semilunar cartilage and current residual symptoms. 4. Prior to June 3, 2020, the Veteran’s left knee post cartilage removal manifests as removal of semilunar cartilage and current residual symptoms. CONCLUSIONS OF LAW 1. The criteria for evaluation for a disability rating in excess of 10 percent for a right knee DJD condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5260. 2. The criteria for evaluation for a disability rating in excess of 10 percent prior to June 3, 2020, for a left knee DJD condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5003-5260. 3. The criteria for evaluation for a disability rating in excess of 10 percent for right knee post cartilage removal have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5259. 4. The criteria for evaluation for a disability rating in excess of 10 percent prior to June 3, 2020, for left knee post cartilage removal have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty service from May 1978 to May 1981; and from October 1981 to September 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). In the August 2020 rating decision, the RO granted an increased temporary 100 percent disability rating for the Veteran’s left knee replacement under DC 5055 effective June 3, 2020, to July 31, 2021. A 30 percent disability was assigned effective August 1, 2021. Since the 30 percent disability rating is not the maximum rating available (aside from the temporary 100 percent disability rating) and the Veteran has not indicated satisfaction with the rating assigned, the issue was continued on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In the June 2020 Board remand, the RO was requested to obtain outstanding VA and private treatment records; and provide new examinations for his knees. All VA treatment records were obtained and associated with the claims file. In August 2020, VA received and associated with the claims file responses from the private treatment facilities provided by the Veteran. Also, the Veteran received a VA examination in September 2020. The September 2020 VA examination is adequate because it provided all requested findings related to the current severity of the Veteran’s knees. Therefore, there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Also, the Board notes that the February 2016 VA examination was inadequate for rating purposes and will not be discussed. Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA’s Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007); see also 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). 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. 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.”). 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 extension (DC 5261), lateral instability or recurrent subluxation (DC 5257), and meniscal conditions (DCs 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004). The Veteran does not have ankylosis, malunion, or genu recurvatum. Therefore, DCs 5256, 5262, and 5263 do not apply. 38 C.F.R. § 4.71a. Additionally, the Board notes that the Veteran’s conditions are currently rated under DCs 5003-5260, 5259, and 5055. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, these DCs were not changed. A. DJD Knee Conditions 1. Entitlement to a disability rating in excess of 10 percent for a right knee DJD condition is denied. The Veteran contends his right knee DJD condition warrants a higher disability rating. Currently, he has a 10 percent disability under DC 5003-5260 effective December 12, 2000. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. DC 5003 provides that degenerative arthritis, established by x-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a. In the absence of limitation of motion, a 20 percent rating, the maximum available, is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. Id. DC 5260 contemplates limitation of flexion of the leg. Under DC 5260, a noncompensable rating is warranted when flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. A 10 percent rating is warranted when flexion of the is limited to 45 degrees. Id. A 20 percent rating is warranted when flexion is limited to 30 degrees. Id. A 30 percent rating is warranted when flexion is limited to 15 degrees. Id. Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran received two VA examinations over the appeal period. First, in the December 2014 VA examination, right knee flexion was 140 degrees or greater. He was able to perform repetitive-use testing with 3 repetitions and his ROM flexion remained the same. The VA examiner noted that the Veteran has functional loss and/or functional impairment of his right knee, and he had tenderness or pain to palpation for the joint line or soft tissues of the right knee. Right knee muscle strength was normal. There was no instability, nor subluxation/dislocation of the right knee. Second, in the September 2020 VA examiner, under initial ROM, right knee flexion was to 140 degrees. There was no objective evidence of localized tenderness or pain palpation of the joint or associated soft tissue. Also, there was no evidence of pain with weight bearing, nor objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. The Veteran was not examined immediately after repetitive use over time for his right knee. However, the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. In terms of ROM, right knee flexion was to 90 degrees. The Veteran was not examined during a flare up. However, the examination was medically consistent with the Veteran’s statements describing functional loss during flare ups. Pain, weakness, fatigability or incoordination does not significantly limit functional ability with flare ups. Right knee muscle strength was normal. There was no ankylosis, subluxation, nor instability of the right knee. The VA examiner noted there was no objective evidence of pain when the right knee was used in non-weight bearing. Also, there was no objective evidence of pain on passive ROM testing and passive range of motion was the same as active range of motion. In sum, the Board finds that a disability rating in excess of 10 percent is not warranted. Throughout the entire appeal period, the Veteran’s right knee DJD condition manifests as painful motion of the right knee pursuant to 38 C.F.R. § 4.59. While there is no dispute that he experiences pain in his right knee, his right knee ROM has a flexion to 140 degrees in the December 2014 and September 2020 VA examinations. Also, there is no evidence of instability or subluxation. Although the September 2020 VA examination notes pain, weakness, fatigability or incoordination as likely as not significantly limits the Veteran’s functional ability with repeated use and ROM flexion was to 90 degrees, this alone does not more closely approximate the criteria for higher rating under DC 5260 which requires limitation of flexion to 30 degrees. Therefore, a disability rating in excess of 10 percent is not warranted, and the claim is denied. 2. Entitlement to a disability rating in excess of 10 percent prior to June 3, 2020, for a left knee DJD condition is denied. The Veteran contends his left knee DJD condition warrants a higher disability rating. Currently, he has a 10 percent disability under DC 5003-5260 effective December 12, 2000. However, as referenced in the introduction, the Veteran currently has a temporary 100 percent disability rating for his left knee replacement effective June 3, 2020, to July 31, 2021. Therefore, the Board will only determine if the Veteran is entitled to a disability rating in excess of 10 percent for his left knee DJD condition prior to June 3, 2020. The Veteran received two VA examinations over the appeal period. First, in the December 2014 VA examination, left knee flexion was 140 degrees or greater. He was able to perform repetitive-use testing with 3 repetitions and his ROM flexion remained the same. The VA examiner noted that the Veteran has functional loss and/or functional impairment of his left knee, and he had tenderness or pain to palpation for the joint line or soft tissues of the left knee. Left knee muscle strength was normal. There was no instability, nor subluxation/dislocation of the left knee. Second, in the September 2020 VA examiner, under initial ROM, left knee flexion was to 130 degrees. There was no objective evidence of localized tenderness or pain palpation of the joint or associated soft tissue. Also, there was no evidence of pain with weight bearing, nor objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. The Veteran was not examined immediately after repetitive use over time for his right knee. However, the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. In terms of ROM, left knee flexion was to 90 degrees. The Veteran was not examined during a flare up. However, the examination was medically consistent with the Veteran’s statements describing functional loss during flare ups. Pain, weakness, fatigability or incoordination significantly limit functional ability with flare ups. In terms of ROM, left knee flexion was to 70 degrees, and extension was up to 20 degrees. Left knee muscle strength was normal. There was no ankylosis, subluxation, nor instability of the left knee. The VA examiner noted there was no objective evidence of pain when the left knee was used in non-weight bearing. Also, there was no objective evidence of pain on passive ROM testing and passive range of motion was the same as active range of motion. In sum, the Board finds that a disability rating in excess of 10 percent prior to June 3, 2020, is not warranted. Similar to the Veteran’s right knee DJD condition, his left knee DJD condition, prior to June 3, 2020, manifest as painful motion of the right knee pursuant to 38 C.F.R. § 4.59. Although, the September 2020 VA examination notes that ROM extension, during flare ups, was to 20 degrees, a separate rating under DC 5261 is not warranted because he is already assigned a 100 percent disability for his left knee replacement from June 3, 2020, to July 31, 2021. Therefore, a disability rating in excess of 10 percent prior to June 3, 20020, is not warranted, and the claim is denied. B. Knees Post Cartilage Removal 3. Entitlement to a disability rating in excess of 10 percent for right knee post cartilage removal is denied. 4. Entitlement to a disability rating in excess of 10 percent prior to June 3, 2020, for left knee post cartilage removal is denied. The Veteran contends his bilateral knee post cartilage removal warrants higher disability ratings. Currently, he has a 10 percent disability rating under DC 5259 for the right knee and a 10 percent rating for the left knee prior to June 3, 2020. Diagnostic Code 5259 provides a maximum 10 percent rating for removal of semilunar cartilage that is symptomatic. Id. In the December 2014 VA examination, it was noted the Veteran had a meniscectomy on his knees with residual symptoms such as occasional locking of the knees, pain when it is cold, and sensitive patellae. In the September 2020 VA examination, it was noted that the Veteran had a meniscectomy on his knees with no current symptoms. The Veteran has been assigned the maximum rating assignable under Diagnostic Code 5259 for the entire period of appeal. As such, ratings in excess of 10 percent for the left and right knee cartilage removal are not warranted under this diagnostic code. Furthermore, a 20 percent rating under DC 5258 is not warranted because the record does not show dislocated semilunar cartilage of either knee. Therefore, a disability rating in excess of 10 for the right knee post cartilage, and in excess of 10 percent prior to June 3, 2020 for left knee post cartilage is not warranted, and the claims are denied. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 30 percent from August 1, 2021, for a left knee replacement is remanded. The Veteran underwent a left knee replacement in June 2020 and was granted a temporary 100 percent rating from June 3, 2020, to July 31, 2021 under DC 5055. The RO assigned a 30 percent effective August 1, 2021, following the temporary disability rating. The Board cannot make a fully informed decision on this matter because the issue is not ripe for adjudication. While a contemporaneous examination was obtained on remand in September 2020, an additional examination will be necessary at the end of the temporary disability rating for the period of convalescence currently in effect. The matter is REMANDED for the following action: 1. At the completion of the temporary total evaluation for the period of convalescence currently in effect through July 31, 2021, schedule the Veteran for an examination to assess the current severity of his left knee conditions. 2. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 3. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee alone and discuss the effect of the Veteran’s left knee on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The examiner is advised that a statement that the examination did not take place during a flare-up is not a sufficient rationale for inability to provide an opinion. 4. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran an opportunity to respond. The case should then be returned to the Board, if in order, for further review. N. NELSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.