Citation Nr: 21014575 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 09-14 267 DATE: March 15, 2021 ORDER Entitlement to a rating in excess of 30 percent for residuals of a left knee replacement is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s residuals of a left knee replacement manifested as intermediate pain, weakness and limitation of motion without chronic residuals consisting of severe painful motion or weakness. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for residuals of a left knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.27, 4.71a, Diagnostic Codes 5055, 5257, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1966 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his March 2009 substantive appeal. In December 2015, the Veteran failed to appear for his scheduled Board hearing, for which he had given been notice in October 2015. There are no other hearing requests or requests to reschedule of record, so the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704(e). This matter previously came before the Board in March 2016 and March 2017 and was remanded back to the Agency of Original Jurisdiction (AOJ) both times to allow for additional development, to include obtaining outstanding records and providing Veteran with a new examination that complied with Correia requirements for range of motion testing. The Veteran was provided a new VA examination, but the Board found the exam to contain conflicting information regarding the presence of ankylosis of the knee. Thus, the Board remanded the matter again in September 2020 to provide a new examination that clarified the incidence of ankylosis and provided a current picture of the Veteran’s symptomatology and also to obtain remaining outstanding VA treatment records. VA has since been provided the Veteran with a new examination that rectifies the previous exam’s inadequacies and satisfies the Board’s September 2020 remand directives. Additionally, outstanding VA treatment records have been associated with the Veteran’s file. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). 1. Entitlement to Increased Rating For Residuals of a Left Knee Replacement The Veteran asserts that he is entitled to an increased rating for his left knee condition, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. Disability evaluations are determined by evaluating the extent to which a veteran’s service connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s residuals of a left knee replacement is currently ratted at a rating of 30 percent pursuant to Diagnostic Code 5257. 38 C.F.R. § 4.71(a). Diagnostic Code 5257 provides for a maximum rating of 30 percent, the rating currently assigned for the Veteran’s disability. However, the Board finds that the appropriate rating for the Veteran’s condition is Diagnostic Code 5055, as that properly contemplates total knee replacement residuals. The Board notes that the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board finds that Diagnostic Code 5055 more accurately contemplates the Veteran’s residuals of a left knee replacement in that it particularly pertains to residuals post-knee replacement. Thus, the Board shall discontinue the Veteran’s 30 percent rating under Diagnostic Code 5257 and shall rate the Veteran’s disability instead under Diagnostic Code 5055. The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the present case, the Board finds that Diagnostic Code 5055 is most applicable to the Veteran’s disability. The revised rating criteria for Diagnostic Code 5055 shortened the length of time that a total rating is awarded following a total knee replacement. However, the Veteran underwent a total knee replacement prior to the instant appeal period. The rating criteria otherwise under Diagnostic Code 5055 are identical under the former and revised rating criteria. Diagnostic Code 5055 provides for a 30 percent rating for a total replacement, without residuals. A 30 percent rating is warranted for intermediate degrees of residual weakness, pain or limitation of motion. A 60 percent rating is provided for chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 100 percent rating is provided for a period of time following implantation of prosthesis. Intermediate degrees of residual weakness, pain, or limitation of motion (a level of disability in between those contemplated by the 30 and 60 percent ratings) are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71(a), Diagnostic Code 5055. Ratings can also be assigned for ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). The Veteran has not alleged, and the record does not suggest, that he suffers from ankylosis in the left knee. The normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The appeal period for this claim dates back to June 2005. As such, the Board will review all evidence from that time onwards. The Veteran was scheduled for a VA examination in July 2006, for which he failed to appear. The Veteran then requested to reschedule his examination and was subsequently provided an examination in December 2006. At the examination, the Veteran reported experiencing pain in both knees. He stated that he was in constant pain, at a level of 8 out of 10. The examiner noted that the Veteran required assistive aids for walking. Functional limitation was noted, with the Veteran unable to stand for more than 15 minutes or walk for more than a quarter mile. Pain and stiffness were also noted for both knees. The examiner noted that there was no incidence of effusion. Flareups of moderate severity were noted to occur one to two months. The Veteran reported that the flareups lasted three to seven days per episode and limited his motion while increasing his pain to a 9 out of 10. Range of motion testing was conducted and revealed findings of flexion to 120 degrees with pain between 100 to 120 degrees; and extension to 90 degrees without limitation from pain. There were no indications of ankylosis, crepitation, or instability of the left knee. The examiner did find that the Veteran’s left knee condition caused him to have an altered gait, categorized as “antalgic”. The Veteran was provided another VA examination in September 2016. The examination confirmed the Veteran’s arthritis of the left knee and status post total replacement. The Veteran reported functional loss due to repeated use over time. Range of motion testing was conducted and revealed findings of flexion to 90 degrees and extension to 90 degrees. No limitation on range of motion due to pain was noted. The Veteran was noted as being able perform repetitive use testing with at least three repetitions, without additional functional loss or range of motion. The examiner also noted that the Veteran’s functional ability was not limited due to pain, weakness, or fatiguability. The examiner found no incidence of ankylosis or subluxation of the left knee. The Veteran was subsequently provided another VA examination in June 2017. The Veteran reported that he had essentially no pain involving his left knee. However, he did report suffering from decreased range of motion and fatiguability in his left knee. The Veteran described painless repetitive use activity of the left knee which however did cause weakness and fatigue upon excessive weight-bearing. Range of motion testing on the left knee revealed findings of flexion to 110 degrees without any pain noted; and extension to 110 degrees without any pain noted. No objective evidence of localized tenderness, pain on palpation, or crepitus was noted. Pain flareups of the left knee were not reported or noted. Additionally, no evidence of ankylosis of the left knee was found. Most recently, the Veteran was provided another VA examination to assess his left knee in October 2020. The examiner noted that the Veteran’s left knee exhibited no pain. The examiner also noted functional loss in regard to various activities, including running, jumping, bearing weight, kneeling, squatting, and bending the knee. The Veteran avoided prolonged sitting as well. Range of motion testing of the left knee revealed measurements of flexion to 105 degrees and extension to 105 degrees. The examiner noted that the range of motion limitations contributed to the Veteran’s functional loss, particularly causing difficult in kneeling, squatting, or bending the knee. Pain was noted upon examination while resting/not moving. However, no evidence of pain upon weight bearing was observed. Additionally, there was also no objective evidence of any localized tenderness or pain on palpation of the left knee or associated soft tissue. Crepitus was also not observed. The Veteran was also noted to be able to perform repetitive use testing to at least three repetitions, without any additional functional loss or loss of range of motion after three repetitions. The examiner further noted that flareups did not significantly limit functional ability due to pain, weakness, fatiguability, or incoordination. The examiner rated the Veteran’s left knee strength at 5 out of 5 for flexion and extension; and noted no reduction in muscle strength. Also, importantly, the examiner noted that the Veteran’s left knee did not exhibit ankylosis, thereby clarifying the previous ambiguity identified by the Board in its September 2020 decision. The examiner also noted that there was no effusion of the left knee. In reviewing the medical evidence detailed above, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was afforded an addendum examination in October 2020 to ensure compliance with Correia and Sharp as well as to resolve previous inconsistencies. The Board finds that substantial compliance with its previous remands has been accomplished and the October 2020 examination is adequate, as it clarified the absence of ankylosis, conducted range of motion and repetitive use testing and considered pain flareups and any related limitations arising from such. The examiner tested for pain, range of motion limitation, and clarified the non-incidence of ankylosis. Therefore, the Board finds that all information required for rating purposes has been provided. See Correia v. McDonald, supra; see also Sharp v. Shulkin, supra. The Board finds that the Veteran’s disability picture does not approximate the criteria contemplated under Diagnostic ode 5055 for a higher rating in excess of 30 percent. The Veteran’s left knee did not exhibit pain at his most recent VA examination. No incidence of crepitus or pain on palpation were observed for the left knee either. The Veteran was able to perform successfully on repetitive use testing with at least three repetitions, without pain or weakness preventing him. Also, importantly, the examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional ability with repeated use over a period of time. The Veteran’s knee was observed to be at 5 out of 5 in strength in range of motion testing; and the examiner noted no reduction in muscle strength. Thus, the Board finds that a higher rating of 60 percent under Diagnostic Code 5055 is not warranted, as the Veteran’s disability does not exhibit the severe painful motion or weakness contemplated under that rating criteria. Next, the Board shall consider whether a higher rating is warranted under Diagnostic Codes 5256, 5261 or 5262. As noted previously, the Veteran does not suffer from ankylosis. Therefore, Diagnostic Code 5256 does not apply. With regards to limitation of motion under Diagnostic Code 5261 or 5262, any such limitation of motion would not warrant a higher rating. Left knee extension was found to be to zero, at worst, during the appeal period while left knee flexion was found to be to 90 degrees, also at worst, during the appeal period. Such does not constitute limitation of motion that would warrant a rating higher than 30 percent. In assessing the severity of the left knee disorder, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board has also considered whether a staged rating under Hart, supra, is appropriate for the Veteran’s service-connected residuals of a left knee replacement; however, the Board finds that his symptomatology referable to such disability has been stable throughout the period on appeal. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). As a final matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The Board notes that the Veteran has been in receipt of a TDIU based on the combined effects of his service connected disabilities since May 24, 2007. Moreover, the Veteran has not asserted that a TDIU is warranted prior to that date. The Board accordingly finds that a claim for TDIU is not raised by the rating issue on appeal and no further action pursuant to Rice is necessary. In this case, the preponderance of the evidence is against a rating in excess of 30 percent rating for residuals of a left knee replacement and the claim must, accordingly, be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Gilbert v. Derwinski, supra. Kristy L. Zadora Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, 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.