Citation Nr: 21011353 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-27 543A DATE: March 1, 2021 ORDER Entitlement to an increased 60 percent rating for service connected left knee osteoarthritis is granted subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an increased 50 percent rating for service connected hysterectomy is granted subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s left knee osteoarthritis more nearly approximates severe painful motion. 2. The evidence is at least evenly balanced as to whether the Veteran’s hysterectomy resulted in the complete removal of her uterus and both ovaries. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for an increased 60 percent rating for the Veteran’s left knee osteoarthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, diagnostic code (DC) 5055. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to an increased 50 percent rating for a hysterectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.116, DC 7617. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1973 to February 1986. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia which continued a 30 percent rating for service connected hysterectomy, and a 10 percent rating for left knee chondromalacia. In October 2012, the Veteran filed her notice of disagreement, was issued a statement of the case in June 2015, and in August 2015 perfected her appeal to the Board. In a January 2017 rating decision, the RO granted a temporary 100 percent rating for the Veteran’s left knee osteoarthritis with left knee replacement from October 18, 2016, and a 30 percent rating from December 1, 2017. On February 9, 2021, the Veteran appeared at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the claims file, but is not necessary for a decision on the claim. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). 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 nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). 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). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. 1. Left knee The Veteran’s left knee osteoarthritis is currently rated 30 percent disabling from December 1, 2017 under 38 C.F.R. § 4.71a, DC 5055. DC 5055, which pertains to a knee replacement, provides for a 100 percent rating for 1 year following implantation of prosthesis, and a minimum 30 percent rating following that 1 year period. 38 C.F.R. § § 4.71a, DC 5055. Where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Id. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the rating criteria provide that the disability is to be rated by analogy to DCs 5256, 5261 or 5262. Id. Normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Board notes that while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the changes regarding diagnostic code 5055 do not materially impact the disposition of this decision. A November 2010 VA examination report reflects that the Veteran reported pain in her left knee that has worsened since her May 2009 examination. The examination report indicated that symptoms of her left knee osteoarthritis included pain, instability, giving way, stiffness, weakness, daily “locking”, and decreased speed of joint motion. The Veteran reported that she is able to stand for 15 to 30 minutes, and is unable to walk more than a few yards. She stated that she always uses 2 crutches to ambulate. The examiner noted abnormal weight bearing, abnormal shoe wear patterns, but no inflammatory arthritis or loss of bone. The examiner also noted diffuse tenderness around and over the entire knee surface, but no crepitation, “clicks” or “snaps”, grinding, instability, patellar or meniscus abnormality, abnormal tendons or bursae, and no other knee abnormalities. There was objective evidence of pain with active motion with flexion to 82 degrees, and extension to 0 degrees. A May 2012 disability benefits questionnaire (DBQ) reflected that the Veteran reported that his left knee “locks” more now, and that there have been several times when she has fallen. She reported use of a cane for ambulation, and stated that she has a lift to get her up the 12 steps into her house. She reported constant pain in her left knee and limited motion, and stated she takes medication which did not help the pain but made her feel “like a zombie” and itch. The Veteran stated that she cannot get on the floor to play with her grandkids, cannot sit or stand for longer than 20 minutes, and reported trouble sleeping due to her knee pain. She reported flare-ups especially during weather changes, stating she tries alternating ice and heat with leg elevation to treat the pain. Flexion was to 85 degrees with objective evidence of painful motion at 85 degrees, and extension to 5 degrees with no objective evidence of painful motion. Following repetitive use, flexion was to 75 degrees, and extension to 5 degrees. The examiner noted less movement than normal, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing. The examiner also noted tenderness or pain to palpation for the joint line or soft tissues of the left knee. Joint stability tests were normal, there was no evidence or history of recurrent patellar subluxation/dislocation, and the Veteran did not have “shin splints”, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examination report reflected that the Veteran has not had any meniscal conditions or surgical procedures for a meniscal condition or a total knee joint replacement, but had undergone arthroscopic knee surgery in 1986, 1989, and 1999/2000 with no residual signs and/or symptoms. The examiner noted that the Veteran’s left knee osteoarthritis impacted her ability to work as she is unable to stand, sit, or walk for prolonged periods. She was also unable to kneel or squat, was limited in her ability to lift, and was unable to work in safety sensitive situations due to medication side effects. August 2013 VA treatment records indicate that the Veteran reported her knee giving out, resulting in her falling 4 times in the last 2 months. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran’s left knee osteoarthritis symptomatology each more nearly approximates severe painful motion and weakness symptomatology contemplated by a 60 percent disability rating under DC 5055. While the November 2010 and May 2012 examiners noted no joint instability, recurrent patellar subluxation/dislocation, and no abnormal tendons or bursae, the Veteran has competently and credibly described left knee osteoarthritis symptoms which included weakness, stiffness, and daily “locking”. The Veteran stated that she is in constant pain and takes medication that does not help the pain, and reported an inability to stand for more than 15 to 30 minutes, or walk more than a few yards. Additionally, the Veteran reported her knee “giving out” resulting in falls, flare-ups especially during weather changes, and endorsed use of a cane and a lift to ascend the steps to her house. The Veteran is competent to report the symptoms associated with her service connected left knee osteoarthritis and the Board has no reason to challenge the credibility of her contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran’s reports of pain and other symptoms are thus afforded significant probative weight, and more nearly approximate severe weakness and painful motion. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a 60 percent rating is warranted under DC 5055 for the entire period on appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § § 4.3. A 60 percent rating is the maximum rating under DC 5055. If a veteran is receiving the maximum disability rating allowable for a particular disorder, the Board does not have to consider whether she is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. Spencer v. West, 13 Vet. App. 376, 382 (2000). The Board notes the Veteran’s reports of instability of the left knee. However, any symptoms of instability are contemplated by the 60 percent rating that includes weakness. Tedesco v. Wilkie, 31 Vet. App. 360, 367, n. 5 (2019) (declining to reach the question of whether the Board committed legal error when it found that a separate rating for instability under DC 5257 could be granted in addition to a rating for knee replacement under DC 5055 because to allow such a rating would constitute improper pyramiding). As to consideration of referral for an extraschedular rating for the time periods addressed above, the Veteran has not contended, and the evidence does not reflect, that she has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). 2. Hysterectomy The Veteran stated in her October 2012 notice of disagreement that her hysterectomy warrants higher than a 30 percent rating as intercourse has become painful, and that she bleeds after intercourse. She also reported continual yeast infections and stated she has been going through hot flashes and cold sweats since her hysterectomy. The Veteran’s hysterectomy is currently rated 30 percent disabling under 38 C.F.R. § 4.116, DC 7618 as removal of the uterus, including corpus. Under DC 7618, a 100 percent rating is warranted for three months after the removal of the uterus, but not the ovaries. Thereafter, a 30 percent disability rating is applied. 38 C.F.R. § 4.116, Code 7618. A November 2010 VA examination report reflects that the Veteran reported an increase in yeast infections in the groin and dyspareunia with bleeding. She treated her infections with over-the-counter creams with some effect, but no lasting improvement in symptoms. The Veteran stated that her symptoms have become progressively worse since onset. There was no history of trauma or neoplasm of the gynecological system or breast, the Veteran reported hot flashes and vaginal dryness, but there was no abnormal vaginal discharge or breast abnormality noted. The Veteran reported continuous pelvic pain and post-coital bleeding, but no fever, abdominal pain, bowel or bladder symptoms, and no fecal or urine leakage. The Veteran did report a history of urinary tract disease with her last infection in July 2010. The Veteran’s examination indicated abdominal tenderness, but no mass, and the transvaginal ultrasound reflected no uterus consistent with the hysterectomy, no abnormal adnexal masses, and no ovaries. A May 2012 DBQ reflected that the Veteran reported adverse reactions to hormone therapy including abdominal pain, bleeding after intercourse, and yeast infections. She also reported suffering from “hot flashes” since the age of 27 after her surgery. The DBQ indicated that the Veteran currently suffered from intermittent mild pain, described as low grade abdominal pain for 10 to 12 days at a time. The Veteran did not have any diseases, injuries, or other conditions of the vulva, vagina, or cervix. The Veteran did not have uterine prolapse, uterine fibroids, enlargement and/or displacement of the uterus, or other diseases, injuries, adhesions or other conditions of the uterus or fallopian tubes. The Veteran had undergone complete removal of her right ovary, and had not been diagnosed with any other disease, injury, adhesion, and/or other condition of the ovary. The examining physician noted that the Veteran did not have urinary incontinence or leakage, a rectovaginal or urethrovaginal fistula, and she had not been diagnosed with endometriosis. The DBQ indicated that the Veteran did not have a benign or malignant neoplasm or metastases related to any diagnosis, had not been diagnosed with anemia, and the examining physician indicated that the Veteran’s gynecological condition did not impact her ability to work. A March 2014 VA urology consultation report reflected that the Veteran suffered from mixed incontinence and irritative voiding since her hysterectomy. June 2015 VA treatment records indicate the Veteran suffered from urinary urgency and urge incontinence, stating she only has 1 or 2 minutes to get to the bathroom when she has the urge. In a May 2017 VA examination note, the physician stated that there was no documented evidence that either ovary was removed during her surgery performed in service. The physician specifically noted that the findings at the time of the laparotomy indicated that the Veteran was noted to have a grossly normal uterus, and normal tubes and ovaries. The physician also stated that by 2010, the Veteran likely would have undergone ovarian menopause and there could have been a degree of atrophy of the ovaries making visualization difficult, or there may have been subsequent removal of the ovaries even though none is noted in the claims file, explaining the absence of ovaries on the 2010 and 2013 ultrasounds. The physician additionally noted that the Veteran’s obesity may have accounted for the nonvisualization of the ovaries. The Board notes that the Veteran is currently in receipt of a 30 percent disability rating which is the highest available schedular rating provided under DC 7618 following the initial 3-month period following a hysterectomy, and a higher, 50 percent rating for a hysterectomy is only warranted under DC 7617 if there is complete removal of the uterus and both ovaries. See 38 C.F.R. § 4.116, DC 7617. Hysterectomy (i.e., uterus removal) is specifically listed as the disability that is rated under either DC 7617 or DC 7618. “[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy.” Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Thus, the Veteran's hysterectomy cannot be rated by analogy and must be rated under either DC 7617 or DC 7618. The evidence is at least evenly balanced as to whether the Veteran’s hysterectomy resulted in the complete removal of the uterus and both ovaries. While the May 2107 physician stated that there is no documented evidence in the claims file that either ovary was removed during the Veteran’s surgery in service, the physician’s explanation as to why the Veteran’s ovaries were absent on subsequent ultrasounds is speculative as he reported that there “could have been” a degree of atrophy of the ovaries making visualization difficult, and “there may have been” subsequent removal of the ovaries. This opinion is thus of minimal, if any, probative value as it is speculative. See Hood v. Shinseki, 23 Vet. App. 295, 296 (2009); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed); Perman v. Brown, 5 Vet. App. 237, 241 (1993) (speculative or equivocal medical opinions may be considered “non-evidence” and have no probative value); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). The November 2010 VA examination report indicated that the Veteran did not have any ovaries, and there is no indication in the evidence of record that the Veteran underwent a procedure removing her ovaries post-service as noted by the May 2017 physician. While the May 2012 examination report specifically reflects that the Veteran underwent complete removal of her right ovary, the omission of any discussion regarding the left ovary does not necessarily indicate that the Veteran has not also had the left ovary removed. Thus, the evidence is at least evenly balanced as to whether the Veteran’s hysterectomy resulted in the removal of the uterus and both ovaries, and a higher 50 percent rating is warranted under DC 7617 for the Veteran’s hysterectomy. As previously noted, a 50 percent disability rating is the highest available rating under DC 7617, and the specific rating requested by the Veteran. The Veteran has not contended, and the evidence does not reflect, that she has experienced symptoms outside of those listed in the rating criteria, thus consideration of referral for an extraschedular rating is not warranted. Doucette, 28 Vet. App. at 369-70 (2017). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.