Citation Nr: 21011014 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 11-28 492 DATE: February 26, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for right knee tibiofemoral joint disability prior to August 31, 2016 is denied. REMANDED Entitlement to an evaluation in excess of 30 percent for right knee total replacement from October 1, 2017 is remanded. FINDING OF FACT Prior to August 31, 2016, the Veteran’s right knee tibiofemoral joint disability is manifested by painful motion. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right knee tibiofemoral joint disability prior to August 31, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5260 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to October 1976, and from March 1979 to October 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2016 rating decision, the Veteran was assigned a temporary total evaluation under 38 C.F.R. § 4.30 from August 31, 2016 to September 30, 2017 based on a total right knee replacement. Since the Veteran is rated at the maximum 100 percent disability rating from August 31, 2016 to September 30, 2017, this time period is not on appeal. In March 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in September 2018 and November 2020 when it was remanded for further development. Increased Rating-Right Knee 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). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 practicably be 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. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Prior to August 31, 2016 Prior to August 31, 2016, the Veteran’s right knee tibiofemoral joint disability was rated as 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. Hyphenated Diagnostic Codes are used when a rating under one diagnostic code requires the use of an additional one to identify the basis for the rating assigned; the additional diagnostic code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5003 directs that a rating shall be awarded on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, which contemplates limitation of extension of the leg, a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The regulations governing musculoskeletal system disability ratings were revised effective February 7, 2021. However, the revisions made to the knee rating criteria do not affect this period on appeal in the Veteran’s case. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453, 76,463 (Nov. 30, 2020). VA treatment records from January 2014 note complaints of right knee pain. There was pain to palpation, no edema, no erythema, and no increase in temperature. In July 2014, it was noted that the Veteran had continuous pain that was not relieved with medication. His right knee was observed with edema. In September 2014, it was noted that the Veteran had right knee pain secondary to overuse due to his left knee. The Veteran underwent a VA examination in December 2014. Range of motion testing in the right knee showed flexion to 120 degrees and extension to 0 degrees. Pain was noted on exam and caused functional loss. There was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joint. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion. The examiner indicated that he could not say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during flare-ups. This was because while it could potentially cause functional limitations, describing a functional limitation based on a possible future event would be mere speculation. The Veteran reported weekly flare-ups of the right knee, which were moderate and lasted 1 to 2 days. Additional contributing factors of disability were disturbance of locomotion and interference with standing. He had an antalgic ambulation and limited tolerance of prolonged standing position. There was active movement against some resistance in the right knee. There was no muscle atrophy and no ankylosis. The right knee had no history of recurrent subluxation, no history of lateral instability, and no history of recurrent effusion. Joint stability testing was normal. The examiner indicated that there was a meniscal tear on the right side but provided no description. The Veteran used crutches on a regular basis for his knee condition, but it was not indicated whether it was for his right or left knee or both knees. The Board has placed little weight of probative value on the examiner’s statements regarding whether pain, weakness, fatigability, or incoordination significantly limited functional ability after repetitive use over time and during flare ups as the examiner did not provide adequate information in this regard. VA treatment records from March 2016 note that the Veteran was disabled from right knee pain. He had an antalgic gait and used a cane all the time. He also wore a brace. For the period prior to August 31, 2016, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right knee tibiofemoral joint disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, disturbance of locomotion, and interference with standing. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the preponderance of the evidence is against a finding that the degree of additional limitation would result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 15 degrees. As indicated, range of motion testing in the right knee showed flexion to 120 degrees and extension to 0 degrees, and there was no additional functional loss or range of motion after repetitive use. While pain was noted on the December 2014 examination and caused functional loss, the Veteran has already been awarded a 10 percent rating based on painful motion of the right knee under the currently assigned evaluation, and is not entitled to a higher or separate rating on that basis. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). A higher rating is not warranted under Diagnostic Code 5256, as there is no evidence of ankylosis of the right knee during this time period. A higher or separate rating is also not warranted under Diagnostic Code 5257, as there is no medical evidence of instability or recurrent subluxation of the right knee. Although the December 2014 VA examiner indicated that the Veteran regularly used crutches, testing found no instability. The Veteran also has not asserted in any lay statements that he has experienced instability of the right knee. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Although the December 2014 examination indicates the Veteran had a meniscal tear, the preponderance of the evidence is against a finding that he has experienced dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint; therefore, a higher or separate rating under Diagnostic Code 5258 is not warranted. Additionally, the weight of the evidence is against a finding that the Veteran had symptomatic removal of the semilunar cartilage, a higher or separate rating is also not warranted under this Diagnostic Code. Further, as malunion or nonunion of the tibia or fibula is not shown, a higher rating under Diagnostic Code 5262 is not warranted. Also, as there is no evidence of genu recurvatum a higher or separate rating under Diagnostic Code 5263 is not warranted for the Veteran’s right knee disability. In conclusion, the Board finds that for the period prior to August 31, 2016, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for right knee tibiofemoral joint disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to evaluation in excess of 30 percent for right knee total replacement from October 1, 2017 is remanded. As indicated above, the Veteran has been represented by an attorney during the pendency of this appeal. In the November 2020 remand, it was directed that the Veteran be asked to complete a VA Form 21-4142 for the complete private treatment records concerning his May 2019 right knee surgery. In November 2020, the Veteran and his attorney were sent correspondence and a blank VA Form 21-4142 to complete. The claims file reflects that the November 2020 correspondence sent to the Veteran’s attorney was returned as undeliverable. It does not appear that the correspondence sent to the Veteran was returned. It does appear, however, that the RO obtained a new address for the Veteran’s attorney but did not resend the November 2020 correspondence to the attorney. A claimant “will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person.” 38 C.F.R. § 20.600. The Board finds that the most reasonable action at this time is to remand this appeal to the RO to ensure that the Veteran is accorded his full right to representation in all stages of his appeal. The RO shall have the opportunity to re-send the November 2020 correspondence to the Veteran’s attorney’s correct current address. In addition, updated VA treatment records should be obtained and associated with the Veteran’s claims file. The matters are REMANDED for the following actions: 1. Re-send the November 2020 correspondence asking the Veteran to complete a VA Form 21-4142 for the complete private treatment records concerning his May 2019 right knee surgery to the Veteran and his attorney at his correct current address. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from November 2020 to the present. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.