Citation Nr: 21012478 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-32 276 DATE: March 4, 2021 ORDER Entitlement to higher staged ratings for status post left knee total replacement, currently rated as 100 percent from August 13, 2019, and 30 percent from October 1, 2020, is denied. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether the Veteran’s status post left knee total replacement manifested functional impairment to the extent that higher staged ratings may be assigned. CONCLUSION OF LAW The criteria for entitlement to higher staged ratings for status post left knee total replacement, currently rated as 100 percent from August 13, 2019, and 30 percent from October 1, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1978 to January 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. In January 2021, the Board remanded this matter for further development. The agency of original jurisdiction (AOJ) was asked to perform an initial adjudication regarding evidence generated by VA since the last Supplemental Statement of the Case was issued and the matter was certified and transferred to the Board. In late January 2021, the AOJ issued a rating decision reducing the Veteran’s assigned rating for status post left knee total replacement from 60 percent to 30 percent effective October 1, 2020. The AOJ explained that the reduction was consistent with the Veteran’s current level of functional impairment and would not result in an overall reduction in compensation because the Veteran is paid at the 100 percent rate. The matter has now returned to the Board for adjudication. Legal Criteria – Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Entitlement to higher staged ratings for status post left knee total replacement The Board finds that the most probative evidence does not reach the level of equipoise as to the claim for higher staged ratings for status post left knee total replacement. Therefore, the appeal must be denied. The Veteran’s status post left knee total replacement is rated under 38 C.F.R. § 4.71a, DC 5055. Such code provides that a 100 percent rating is assigned for 13 months following total knee replacement, and is thereafter rated at either 30 percent (minimum rating) or at 60 percent for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion, are to be rated by analogy to DC 5256, 5261, or 5262. Effective February 7, 2021, the rating criteria applicable to disorders of the musculoskeletal system have changed. See 85 Fed. Reg. 76453 (November 30, 2020). As the new criteria are potentially more favorable to the Veteran, the Board will apply the updated criteria in rating his left knee disorder. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for extension of the knee 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. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Even if a veteran did not have compensable limited motion of the knee under DC 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion “inhibited by pain.” Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Separate ratings may be awarded under DC 5257, 5260, and 5261. See VAOPGCPREC 9-2004. A rating assigned under DC 5260 or 5261 does not preclude, as a matter of law, a separate evaluation under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017). Turning to the evidence of record, the Veteran underwent a VA examination in November 2020. She complained of pain, stiffness, weakness, loss of motion, numbness, and pain along the side and across the scar. She reported flare-ups of the left knee lasting from several hours to several days, described them as 75 percent severe but some moderate, precipitated by daily activities and relieved by rest, elevation, and pain medication. Range of motion testing of the left knee showed flexion 0 to 110 degrees and extension 110 to 0 degrees. Pain was noted on examination but did not cause functional loss, and there was objective evidence of pain with weightbearing and crepitus. The Veteran performed repetitive use testing without additional functional loss. The examiner estimated that the Veteran’s functional loss after repeated use over time and with flare-ups would be flexion 0 to 90 degrees and extension 90 to 0 degrees. Muscle strength testing was normal and there was no evidence of ankylosis. Joint stability testing was normal and there was no evidence of a meniscal condition. The examiner found that the Veteran would experience “inability to kneel, squat repeatedly; [and] decreased ability to stand or walk greater than 20 minutes.” There was objective evidence of pain on passive range of motion and with weightbearing of the left knee. The Board has reviewed the Veteran’s VA medical records. However, such records do not suggest evidence of functional impairment to the extent that higher staged ratings may be assigned for the Veteran’s status post left knee total replacement. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to whether higher staged ratings may be assigned for the Veteran’s status post left knee total replacement. In reaching this conclusion, the Board has considered the medical evidence. The November 2020 VA examination documented normal muscle strength and flexion 0 to 110 degrees and extension 110 to 0 degrees. Such a level of functional impairment is consistent with a 30 percent rating. 38 C.F.R. § 4.71a, DC 5055. The examiner did not document “chronic residuals consisting of severe painful motion or weakness” to the extent that a 60 percent rating is appropriate. Moreover, the Board notes that the examiner found no evidence of ankylosis to the extent that a higher rating could be assigned under such criteria. 38 C.F.R. § 4.71a, DC 5256. The Board has considered the Veteran’s reports of flare-ups. Nevertheless, the examiner found that the Veteran would exhibit limited flexion to 0 to 90 degrees and extension 90 to 0 degrees during such periods. Such a level of functional impairment does not suggest that a higher rating may be assigned during flare-ups. See Mitchell, 25 Vet. App. at 43. The Board has considered the Veteran’s lay reports, but observes that disability ratings are determined by the application of the rating schedule, which does not support entitlement to a higher rating in this case. In sum, the appeal may not be granted. See 38 U.S.C. § 5107(b). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.