Citation Nr: 21011225 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-10 258A DATE: March 1, 2021 ORDER Entitlement to a disability rating of 60 percent, but no higher, for right knee disorder, status-post total knee replacement beginning December 10, 2019 is granted. REMANDED Entitlement to a disability rating in excess of 30 percent for right knee disorder, status-post total knee replacement from February 1, 2013 to December 9, 2019 is remanded. FINDING OF FACT The Veteran’s right knee disorder, status-post total knee replacement has been manifested by chronic residuals consisting of severe painful motion or weakness, beginning December 10, 2019. CONCLUSION OF LAW The criteria for an evaluation of 60 percent, but no higher, for right knee disorder, status-post total knee replacement have been met beginning December 10, 2019. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.71a, DC 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1991 to November 1994. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of the Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a January 2012 decision, the RO granted a temporary total evaluation effective December 13, 2011, and assigned a 30 percent disability rating effective February 1, 2013 for a right total knee replacement. The matter was previously before the Board in February 2019, wherein the Board remanded the issues for further development, to include scheduling the Veteran for additional VA examinations. Entitlement to an increased rating for right knee disorder, status-post total knee replacement Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Id. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by pain. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 3738 (2011); see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes 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, 25 Vet. App.at 44. Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. at 32. Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell, 25 Vet. App. at 44. Nonetheless, despite the relevance of the background factors delineated in § 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 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 [or § 4.73] criteria.”). The Veteran seeks a rating in excess of 30 percent for his service-connected right knee disorder, status-post total knee replacement. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5055, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, DC 5055 provided for a 100 percent rating for one year following implantation of prosthesis. As of February 7, 2021, DC 5055 refers to knees, resurfacing or replacement and provides for a 100 percent rating for four months following implantation of prosthesis or resurfacing. DC 5055 pertaining to prosthesis before and after the regulatory change, provides that afterwards, a 30 percent minimum rating is assigned for chronic residuals consisting of intermediate degrees of residual weakness, pain or limitation of motion in the affected extremity. When there are intermediate degrees of residual weakness, pain or limitation of motion, the knee is to be rated by analogy to DCs 5256, 5261, or 5262. A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, DC 5055. As of February 7, 2021, at the conclusion of the 100 percent evaluation period, evaluate resurfacing under Diagnostic Codes 5256 through 5262; there is no minimum evaluation for resurfacing. DC 5256 provides ratings based on ankylosis of the knee. The minimum 30 percent rating is warranted for favorable angle in full extension, or in slight flexion between zero degrees and 10 degrees. A 40 percent rating is warranted for ankylosis of the knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for ankylosis of the knee in flexion between 20 degrees and 45 degrees. The maximum 60 percent rating is warranted for ankylosis of the knee that is extremely unfavorable, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256. DC 5261 provides ratings based on limitation of extension of the leg. The minimum 0 (zero) percent rating is warranted for extension limited to 5 degrees. 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. The maximum 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. DC 5262 provides ratings based on the impairment of the tibia and fibula, including shin splints, and provides a maximum 40 percent rating for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, DC 5262. The Veteran is seeking an evaluation in excess of 30 percent for his right knee disability, post total knee replacement. The Board notes that the Veteran underwent a right total knee replacement in December 2011 and a temporary evaluation of 100 percent was in effect from December 13, 2011 through January 31, 2013. Accordingly, as the Veteran was in receipt of the maximum schedular rating following his total knee replacement pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, there is no legal basis for assignment of a higher scheduling rating during that period of time. The period on appeal from February 1, 2013 to December 10, 2019 is being remanded for additional development for the reasons discussed in the remand portion of this decision. For the reasons discussed below, the Board finds that an increased rating of 60 percent is warranted effective December 10, 2019. Pursuant to the Board’s February 2019 remand the Veteran was examined for his right knee disability by the VA in December 2019. The examiner noted that the Veteran did well for years after his 2011 total knee replacement but in 2017 it began to swell with subluxation when going up and down stairs. It was indicated that the orthopedist advised to have replacement of the right knee again. The Veteran indicated that he experiences knee effusion twice weekly and is sloppy without a brace. He stated he is unable to bend the knee securely, with lateral and posterior instability. He also reported having intermittent sharp pain with weight bearing or bending the knee on the anterior patella. Treatment included compression brace, Advil, and Voltaren gel as needed. On examination, flexion was to 95 degrees with pain and extension was to zero degrees with pain on flexion and extension. The Veteran was able to perform repetitive-use testing with at least three repetitions with five degrees of additional loss of function or ROM, having flexion to 90 degrees after three repetitions. Pain, fatigue, and weakness were noted to cause the additional functional loss. There was pain with weight bearing and crepitus. There was no ankylosis of the right knee. Regarding impairment of the tibia or fibula, it was noted that the Veteran had shin splints which did not affect range of motion of the knee or ankle but caused pain in the shins if the Veteran walks for a prolonged period of time. It was also noted that he had stress fracture of the lower leg which did not affect range of motion of the ankle and was without any current symptoms. The VA examiner indicated that the Veteran had chronic residuals consisting of severe painful motion or weakness and instability of the knee and effusion, locking at times, and subluxation when bending the knee. The Board acknowledges that the VA examinations of the Veteran’s knee must include joint testing for pain 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. 38 C.F.R. § § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has also considered the United States Court of Appeals for Veterans Claims (Court’s) holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), addressing 38 C.F.R. § 4.40, which states that a VA examiner must “express an opinion on whether pain could significantly limit functional ability” and the examiner’s determination in such regard “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Notably, the Board finds that the December 2019 VA examination conforms to these requirements. In pertinent part, the VA examiner appears to have conducted joint testing on active, passive, weight bearing, and non-weight bearing ranges. Moreover, the examination was performed following repetitive use over a period of time and the examiner described the function loss during flares ups in terms of range of motion loss. The Board finds that the evidence shows the criteria for a higher 60 percent rating for right knee disorder, status-post total knee replacement are met beginning December 10, 2019. In pertinent part, for this period, the evidence shows that the Veteran’s right knee was manifested by weakness, severe painful motion, and range of motion loss due to pain. As noted above, the VA examiner indicated that the Veteran had chronic residuals consisting of severe painful motion or weakness and instability of the knee and effusion, locking at times, and subluxation when bending the knee. Such evidence equates to the criteria for establishing a 60 percent rating. Accordingly, for this period, 60 percent ratings for bilateral status post knee replacements are granted. A 60 percent rating under DC 5055 is the maximum schedular evaluation under that diagnostic code. A higher rating of 100 percent is only warranted for the prescribed period following the implantation of the prosthesis. 38 C.F.R. § 4.71a, DC 5055. Although the December 2019 VA examiner indicated that the Veteran had been advised to have another knee replacement, the evidence of record does not reflect any knee replacement subsequent to the 2011 surgery. The Board notes that a rating under DC 5055 encompasses all identifiable residuals of post total knee replacement, including limitation of motion, instability, and functional impairment. The rule against pyramiding prohibits compensating twice for the same manifestations. As the Veteran is service-connected for residuals of a total right knee replacement (excluding the convalescent period) pursuant to DC 5055, a separate rating under DC 5257 (for instability) or under DC 5258 (for frequent episodes of locking, pain, and effusion) is not warranted. No other diagnostic code regarding knee disabilities would allow the Veteran a rating higher than 60 percent. Pursuant to 38 C.F.R. § 4.68, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation of the elective level, where amputation to be performed. DCs 5162 through 5164, regarding amputation approximately at the knee, only allow for a maximum 60 percent disability rating. Therefore, the Board finds that from December 10, 2019, the Veteran is not entitled to a rating in excess of 60 percent for his right knee disorder, status-post total knee replacement. In sum, the evidence shows that from the December 2019 VA examination report, his right knee disorder, status post knee replacement, resulted in chronic residuals consisting of severe painful motion and weakness. As such, increased ratings to 60 percent for the right knee disability is warranted effective December 19, 2019. REASONS FOR REMAND Entitlement to a disability rating in excess of 30 percent for right knee disorder, status-post total knee replacement is remanded. In February 2019, the Board remanded the issue for a retrospective medical opinion concerning the Veteran’s historical reports of flare-ups in compliance with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (the examiner should “estimate the functional loss that would occur during flares.”). Although the VA examiner provided an opinion regarding the presence of ankylosis as requested, unfortunately, the examiner did not offer the requested retrospective opinion regarding any additional functional loss associated with flare-ups reported during the 2017 and 2018 VA examinations. Therefore, the appeal must be remanded for compliance with the February 2019 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). The matter is REMANDED for the following actions: 1. Forward a copy of this remand to a qualified examiner for the purpose of obtaining a retrospective opinion regarding the functional effects of flare-ups of the Veteran’s right knee. Identify the: i. frequency; ii. duration; iii. symptoms, iv. description of pain and duration of such pain, v. precipitating factors; and vi. alleviating factors for the reported flare ups. Please note that in the July 2017 and May 2018 VA examinations, the Veteran reported frequent flare-ups causing severe pain as well as pain with weight bearing, ambulation and sitting. Provide a retrospective opinion concerning the degrees of limited motion for the Veteran’s right knee with active and passive range of motion in weight-bearing and nonweight-bearing conditions and that experienced with repeated use over time and during flare-ups prior to December 10, 2019. The range of motion lost during these historical periods of flare-ups should be approximated in degrees, to the extent possible. The examiner should also indicate whether the Veteran had severe painful motion or weakness in the right knee prior to December 10, 2019. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the Agency of Original Jurisdiction (AOJ) should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion   2. Prior to returning the case to the Board, review the requested medical opinion to ensure it is responsive to, and in compliance with, the directives of this remand, and if not, implement corrective procedures. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.