Citation Nr: 21010561 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-09 029 DATE: February 25, 2021 ORDER A 60 percent disability rating from December 1, 2018 onward for status post total right knee replacement is granted. FINDING OF FACT Since December 1, 2018, the Veteran’s service-connected status post total right knee replacement has been manifested by pain, weakness, swelling, stiffness, and limited ability to walk, stand, or sit for extended periods of time, and difficulty driving and climbing stairs. CONCLUSION OF LAW The criteria for entitlement to a 60 percent disability rating for status post total right knee replacement since December 1, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Code (DC) 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to July 1983, October 1986 to October 1991, and October 2001 to March 2005, with additional periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA). This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision. In December 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In April 2019, the Board decided the claim for a higher right knee disability rating on the basis of arthritis and instability prior to October 26, 2017 (the date on which the Veteran underwent a total right knee replacement); however, the severity of the status post right knee replacement following a period of convalescence ending on December 1, 2018, was not clear, and as such, the Board remanded the issue on appeal of for additional development to adequately address the severity of the Veteran’s status post right knee replacement in terms of the rating schedule. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 DCs, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Entitlement to a disability rating in excess of 30 percent from December 1, 2018 onward for status post total right knee replacement The Veteran contends that his right knee disability warrants a rating higher than currently assigned. The Veteran’s status post total right knee replacement (previously rated as right knee degenerative joint disease (djd) based on arthritis with limited motion) was rated as 10 percent disabling from August 21, 2012 under 38 C.F.R. § 4.71a, DC 5003-5260, 100 percent from October 26, 2017, the date on which he underwent a total right knee replacement, and 30 percent from December 1, 2018 under 38 C.F.R. § 4.71a, DC 5055. The Veteran is currently in receipt of a 10 percent disability rating from March 6, 2019 under 38 C.F.R. § 4.118, DC 7804 for his service-connected painful surgical scar of the right knee, associated with status post total right knee replacement. VA recently amended the rating criteria for musculoskeletal conditions, effective February 7, 2021. Unless otherwise indicated, in cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. If an increased rating is warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Under the prior regulations, DC 5055 provided a 100 percent evaluation for the one year following implantation of the prosthesis; thereafter, a 60 percent rating is warranted for a total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a 30 percent rating is the minimum possible rating assignable. Intermediate degrees of residual weakness, pain, or limitation of motion (i.e. a level of disability in between those contemplated by the 30 and 60 percent ratings) are to be rated by analogy to DCs 5256, 5261, or 5262. 38 C.F.R. § 4.71a, DC 5055. Of note, a schedular evaluation greater than 60 percent is prohibited by the “amputation rule,” found in 38 C.F.R. § 4.68, which prohibits the assignment of a combined rating for disabilities of an extremity higher than the rating for the amputation at the elective level, were amputation to be performed. Amputation at the elective level would be at thigh level, middle or lower thirds. Amputation at that level warrants only a 60 percent disability rating. 38 C.F.R. § 4.71a, DC 5165. As such, the Veteran cannot receive a higher rating for his status post total knee replacement than for an amputated leg. Under the revised VA regulations governing musculoskeletal disabilities under 38 C.F.R. § 4.71a, the following applies to rating prosthetic implants and resurfacing: Note (1): When an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under diagnostic codes 5051-5056, an additional rating under §4.71a may not also be assigned for that joint, unless otherwise directed. Note (2): Only evaluate a revision procedure in the same manner as the original procedure under diagnostic codes 5051-5056 if all the original components are replaced. Note (3): The term “prosthetic replacement” in diagnostic codes 5051-5053 and 5055-5056 means a total replacement of the named joint. However, in DC 5054, “prosthetic replacement” means a total replacement of the head of the femur or of the acetabulum. Note (4): The 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of the 1-month total rating assigned under §4.30 following hospital discharge. Note (5): The 100 percent rating for 4 months following implantation of prosthesis or resurfacing under DCs 5054 and 5055 will commence after initial grant of the 1-month total rating assigned under §4.30 following hospital discharge. Note (6): Special monthly compensation is assignable during the 100 percent rating period the earliest date permanent use of crutches is established. Under the revised VA regulations, 38 C.F.R. § 4.71a, DC 5055 provides a 100 percent evaluation for four months following implantation of prosthesis or resurfacing; a 60 percent rating is warranted for prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity or with intermediate degrees of residual weakness, pain, or limitation of motion, rated by analogy to diagnostic codes 5356, 5261, or 5262; a 30 percent rating is the minimum evaluation, for total replacement only. A note following the criteria under DC 5055 indicates that at the conclusion of the 100 percent evaluation period, evaluate resurfacing under diagnostic codes 5256 through 5256; there is no minimum evaluation for resurfacing. During the 2018 hearing, the Veteran testified that he had some instability in his right knee and had to wear a brace because his knee would pop out of place, difficulty walking up and down stairs, and uses a cane so that he does not fall. The Veteran stated that he began using a cane prior to the knee replacement as well as a knee brace. The Veteran stated that, at least once a day, his knee moved from side to side, vertically and back and forth, and was unstable. He stated that, at least twice a week, it would give way and he would fall, if he was not careful. He stated that his knee would lock and then he would have to manipulate it so that to stop the locking. He testified that he had instability after the meniscal repair during active service, until he had the total knee replacement. The Veteran underwent a VA examination in March 2019 for his right knee. The examination report provides a diagnosis of status post total right knee replacement in 2017, and the Veteran reported constant, dull pain, rated as a 5 out of 10, with stiffness upon awakening that worsens throughout the day. The Veteran reported flare-ups of the knee, describing them as daily and severe, causing sharp pain, rated as an 8 out of 10, and lasting 20 minutes. The Veteran reported that he was unable to walk more than about 1/4 mile, unable to perform heavy lifting, has to rest after one flight of stairs, and has limitations with sitting for prolonged periods with his right knee flexed, needing to extend or move around to help alleviate pain. Range of motion (ROM) testing revealed flexion from 0 to 125 and extension from 125 to 0, with pain, noting that ROM contributes to functional loss. The examiner noted objective evidence of localized tenderness or pain, described as sharp, located at the anterior and lateral right knee, with severity rated as 5 out of 10. The examiner noted constant stiffness, pain, and limited ROM related to the Veteran’s status post right knee replacement. The report shows that pain causes functional loss, with contributing factors including mild swelling and interference with sitting and standing for long periods without breaks. The examiner noted residuals of the total knee joint replacement as intermediate degrees of residual weakness, pain, or limitation of motion. The report indicates normal muscle strength, no evidence of pain with weight bearing, no crepitus, no muscle atrophy, no joint instability, and no ankylosis. The examiner noted objective evidence of pain on passive ROM but not on non-weight bearing. The Veteran occasionally uses a brace, and constantly uses a cane. In a March 2019 statement, the Veteran stated that he received his VA examination two months after his October 2017 surgery and that, at that time, he was experiencing a lot of pain during movement, which he is experiencing now. He stated that for a 60 percent rating, “chronic residuals consisting of severe painful motion or weakness in the affected extremity” must be shown. He stated that he has pain in his right hip and still has problems sitting for long periods of time and driving as well as problems walking and going up and down stairs. He stated that he had to have manipulation surgery for his right knee because of scar tissue that was preventing him from being able to move his knee. VA treatment records list osteoarthrosis involving the knee on the active problem list. In a May 2019 record, the Veteran complained of pain at bilateral knee and in bilateral feet and hip as well. The examiner noted that the Veteran was motivated to maintain his active lifestyle and continue with exercises at the local gym (uses treadmill, elliptical machine, and walking in pool 2 to 3 times a week). The Veteran also performs stretching but admits some increased symptoms. The Veteran usually wears a knee brace and is employed at a “desk job, but [he does] get up and walk.” The Veteran underwent a VA examination in November 2019 for his status post total right knee replacement. ROM testing revealed flexion 0 to 90, and extension 90 to 0, noting that ROM contributes to functional loss, specifically limiting knee bending. The examiner noted pain on examination on both flexion and extension, but not resulting in or causing functional loss. The examiner noted objective evidence of localized tenderness or pain, noting mild tenderness and swelling of the medial knee due to total knee replacement. The report indicates that pain, fatigue, and lack of endurance significantly limit functional ability with repeated use over a period of time, with additional contributing factors including swelling and interference with standing, and more pain with distance walking. The examiner noted normal muscle strength testing, evidence of pain with weight bearing, no objective evidence of crepitus, no muscle atrophy, no ankylosis, and no joint instability. The examiner noted residuals of the total right knee joint replacement including pain, swelling, and decreased ROM, and that the Veteran was limited in distance walking and long standing due to pain. The examiner stated that he reviewed the March 2019 VA examination report, noting the finding of right knee flexion from 0 to 125, extension from 125 to 0, moderate tenderness of the knee, and no loss of strength. He noted that the March 2019 report showed no indication of locking or instability, only reporting stiffness and dull pain with short flares of sharp pain lasting 20 minutes, daily as well as mild swelling and limited walking and standing. The examiner stated that the only inconsistencies are that no locking or instability was reported. He stated that the current ROM upon examination was more limited, 0 to 90 and 90 to 0, and that swelling and moderate pain were noted on examination. He stated that there was still no instability or loss of strength, and all other findings were consistent. Based on the symptoms discussed above, the Board finds that, for the period since December 1, 2018, the Veteran’s right knee disability symptoms more closely approximated the criteria for a rating of 60 percent under the old and the revised criteria for DC 5055. More specifically, the Board finds that the evidence shows the functional equivalent of chronic severe painful motion. In reaching this conclusion, the Board has assigned considerable probative value to the functional impairment noted in the VA examinations summarized above. The examinations consistently show a limited ability to walk, stand, sit, drive and climb stairs due to pain, swelling, weakness, and stiffness. In the Veteran’s November 2019 VA examination, the examiner noted that current ROM testing was more limited than previously and that the Veteran experiences swelling and moderate pain in his right knee. The Board has considered the Veteran’s VA treatment records and statement where he indicates experiencing severe pain as to his symptoms when granting the 60 percent rating. Having found the Veteran is entitled to a rating of 60 percent for the period since December 1, 2018, the Board need not consider whether higher or separate ratings are warranted; as DC 5055 in VA’s rating schedule pertains specifically to evaluations of total knee replacement disabilities, the Veteran’s disability will not be rated by analogy to any of the other DCs. Copeland v. McDonald, 27 Vet. App. 333, at 337 (2015). Even if it were possible to rate by analogy, the Veteran’s right knee disability would remain at 60 percent under the pre- and post-February 7, 2021 regulation update. Other than the assignment of a temporary 100 percent evaluation for one year following the total knee replacement, a 60 percent disability rating is the highest rating that can be assigned pursuant to the DCs applicable to the evaluation of knee and leg disabilities prior to or since February 7, 2021. As such, the Board finds the evidence on whether the right knee disability had chronic residuals that manifested as severe painful motion and stiffness in the affected extremity following the convalescent period exists and is persuasive. As such, the Board finds a 60 percent disability rating under DC 5055 is warranted from December 1, 2018. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, 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.