Citation Nr: 21015680 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-37 258 DATE: March 18, 2021 ORDER Entitlement to a disability evaluation in excess of 10 percent prior to December 16, 2016 for purposes of accrued benefits for right-knee disorder is denied. Entitlement to a disability evaluation in excess of 30 percent from February 1, 2018 for purposes of accrued benefits for status post total right-knee replacement is denied. FINDINGS OF FACT 1. The objective medical evidence shows at no time during the appeal period prior to December 16, 2016 did right-knee disorder more closely approximate flexion limited to less than 45 degrees or less; right-side ankylosis; right-knee subluxation or lateral instability; dislocation of semilunar cartilage with frequent episodes of “locking,” pain and effusion into the joint; extension limited to more than 10 degrees; removal of semilunar cartilage; malunion of the tibia and fibula with any knee or ankle disability; or a reverse or backward-bending knee joint indicating genu recurvatum. 2. The objective medical evidence shows at no time during the appeal period from February 1, 2018 did residuals of total right-knee replacement more closely approximate chronic residuals consisting of severe painful motion or weakness, favorable or unfavorable ankylosis, right-knee extension limited to 30 degrees, or any impairment of the tibia and fibula. CONCLUSIONS OF LAW 1. The criteria for an increased disability evaluation in excess of 10 percent prior to December 16, 2016 for purposes of accrued benefits for right-knee disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes 5003, 5010, 5260, 5256, 5257, 5258, 5259, 5261, 5262, 5263 (2020). 2. The criteria for an increased disability evaluation in excess of 30 percent from February 1, 2018 for purposes of accrued benefits for status post total right-knee replacement have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from June 1979 to July 1986. In February 2017, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter has been Remanded in July 2018, and September 2020. It has now been returned to the Board for further review. It is noted that a total rating based on individual unemployability was assigned from February 1, 2002. The Veteran passed away in October 2019. The Appellant has been recognized as the surviving spouse for VA purposes, with entitlement to pursue accrued benefits. Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as “pyramiding,” must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2019). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). 1. Entitlement to a disability evaluation in excess of 10 percent prior to December 16, 2016 for purposes of accrued benefits for right-knee disorder. In the period prior to December 16, 2016, right-knee disorder was evaluated under Diagnostic Code 5010-5260, as the Veteran had not yet undergone a total right-knee replacement. The rating assigned was for painful noncompensable limitation of motion. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned, appearing after the hyphen. 38 C.F.R. § 4.27. Put simply, the hyphenated code indicates the disorder was diagnosed as traumatic arthritis (Diagnostic Code 5010) and the resulting symptomatology of the disability is limitation of motion (Diagnostic Code 5260). As it is, Diagnostic Code 5010 directs the adjudicator to rate traumatic arthritis as degenerative arthritis, under Diagnostic Code 5003. That diagnostic code in turn directs that, when substantiated by x-rays, degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The joint is the knee and, as stated, Diagnostic Code 5260 has been assigned to provide the relevant rating criteria for limitation of motion. Diagnostic Code 5260 provides a 10 percent rating when flexion is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating will be assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Normal flexion is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Turning to the record, an August 2013 rating decision continued the evaluation for right-knee disorder at a 10 percent rating. That evaluation was not based on any rating criteria of the applicable diagnostic codes, below, but rather for right-knee painful motion under 38 C.F.R. § 4.59, which allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint, as was demonstrated in previous examinations. The Veteran disagreed with that rating with the submission of his October 2013 Notice of Disagreement (NOD), which VA received in October 7, 2013, thereby commencing the appeal period. Overall, in the period prior to December 16, 2016, the ratings for right-knee disorder have alternated from 10 percent ratings to 3 instances of awards of temporary total ratings (100 percent) for periods of convalescence after surgeries. From the commencement of the appeal period to December 16, 2016 is the stage of the appeal period in which the Appellant seeks a rating beyond 10 percent. The Board begins its consideration of evidence approximately one year prior to the start of the appeal period. The Board will first look to the June 2012 VA examination for knee and lower-leg conditions, in which the VA examiner stated a 1986 diagnosis of minimal right-degenerative joint disease and a 1998 diagnosis of right chondromalacia. He noted the Veteran’s reports of 3 arthroscopies and current daily pain. Range of motion measurements show right-knee flexion at 0 to 90 degrees (140 degrees, normal), with no objective evidence of painful motion. Right-knee extension was recorded at “0,” indicating normal extension, also with no objective evidence of painful motion. After 2 repetitions, flexion was reduced further to 70 degrees. Extension remained normal. The Veteran reported that flare-ups further inhibit movement, as he cannot stand or walk for a long period. As it is, the above range of motion measurements for each knee are well beyond any limitation of motion measurements set forth under Diagnostic Code 5260 and no higher rating would be available under that diagnostic code. However, in order to afford the Veteran every possible opportunity to attain the highest evaluation allowed under the regulations, the Board will also look to related or analogous diagnostic codes pertaining to the knee to determine if a higher evaluation might be available under those codes. Therefore, Diagnostic Code 5256 provides ratings from 30 to 60 percent for varying degrees of ankylosis of the knee. Specifically, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5256. However, the June 2012 VA examiner made no finding of right-knee ankylosis. The Board will briefly note here that, although Diagnostic Code 5257 has been revised, those revisions are effective starting only from February 7, 2021 and are therefore not applicable in this stage of the appeal period prior to December 16, 2016. Therefore, under the previous version, Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating with evidence of moderate recurrent subluxation or lateral instability and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board will note at this point that descriptive words, such as “moderate” and “severe,” as used in this version of Diagnostic Code 5257, are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. However, the June 2012 VA examiner specifically found normal results 3 right-knee joint stability tests. He further found no evidence or history of recurrent right-knee patellar subluxation/dislocation. Under Diagnostic Code 5258, a sole 20 percent rating is warranted for dislocation of semilunar cartilage “with frequent episodes of ‘locking,’ pain and effusion into the joint.” The June 2012 VA examiner on examination found the Veteran did not then have or ever had a meniscus (semilunar cartilage) condition. The highest rating under Diagnostic Code 5259 for being symptomatic for removal of semilunar cartilage is 10 percent and, as the Veteran at this time was already rated at 10 percent, this diagnostic code is not applicable, as an “extra” 10 percent added on for identical or similar symptoms is impermissible “pyramiding” of one diagnosis upon another. See 38 C.F.R. § 4.14. As it is, the June 2012 VA examiner made no finding of symptoms associated with removal of semilunar cartilage. Diagnostic Code 5261 provides a 10 percent rating when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. A 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees. A 50 percent rating is available for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal extension is from 140 to 0 degrees. 38 C.F.R. § 4.71, Plate II. As set forth above, the June 2012 VA examiner specifically found no limitation of motion in right-knee extension and no higher evaluation is therefore available to the Veteran under this diagnostic code. The pre-revision version of Diagnostic Code 5262 addresses impairments of the tibia and fibula, providing a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is available for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating will be assigned with nonunion of the tibia and fibula, with loose motion, requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. On examination, the June 2012 VA examiner found there was no right-knee tibial or fibular impairment whatsoever. Therefore, Diagnostic Code 5262, too, is not applicable. Diagnostic Code 5263 allows one evaluation at 10 percent for genu recurvatum, i.e., a reverse or backward-bending knee joint, “acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated.” As already stated, the Veteran at this time is already rated at 10 percent and the June 2012 VA examiner made no such finding. Although the June 2012 VA examiner noted that available imaging studies documented right-knee degenerative or traumatic arthritis, as directed by Diagnostic Code 5003 (degenerative arthritis), the Board has looked to Diagnostic Code 5260 (limitation of motion) and, as stated above, no higher rating is available. The Board notes functional loss, as reported by the Veteran in the June 2012 VA examination, as well as changes affecting normal working movements, were sufficiently reviewed, included in the examination findings and considered in the assignment of the Veteran’s current disability evaluation, but they have not presented a basis for a higher evaluation beyond the 10 percent rating for the effects of limitation of motion, due to the Veteran’s reported pain on movement. See 38 C.F.R. §§ 4.40, 4.45, 4.59; See DeLuca v. Brown, 8 Vet. App. at 204-07; Mitchell v. Shinseki, 25 Vet. App. at 37; Burton v. Shinseki, 25 Vet. App. at 5. From June 2012 through October 2015 medical treatment records show the Veteran consistently reported pain. He discussed a total right-knee replacement with his treatment providers, which was eventually performed on December 16, 2016. The Board has looked the rating criteria of not only Diagnostic Code 5260, but to no less than 7 additional analogous or related diagnostic codes in an attempt to apply the findings on examination and treatment to those criteria for any possible higher rating. As discussed above, no findings in the record from prior to December 16, 2016 satisfy the criteria for a higher rating. For the reasons stated and based on the medical evidence of record, the Board finds the preponderance of the evidence does not support an increased rating in excess of 10 percent prior to December 16, 2016. 2. Entitlement to a disability evaluation in excess of 30 percent from February 1, 2018 for purposes of accrued benefits for status post total right-knee replacement. In the period from December 16, 2016, the Veteran’s status post total right-knee replacement is evaluated under Diagnostic Code 5055. As the Veteran passed away in October 2019, the February 2021 revisions to this diagnostic code are not applicable for the period of treatment and examination before the Veteran’s death. Therefore, the pre-revision version of Diagnostic Code 5055 provides a 100 percent rating for one year following implantation of a knee prosthesis for service-connected knee disability. Thereafter, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity; or, a minimum 30 percent rating is assigned. Higher ratings may also be assigned when there are intermediate degrees of residual weakness, pain, or limitation of motion. These intermediate residuals are to be rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055. A November 2020 rating decision assigned a temporary total rating for the period of 13 months following the December 2016 implantation of a total knee replacement. A minimum 30 percent evaluation was then assigned from February 1, 2018, as the minimum evaluation required under Diagnostic Code 5055 for a total knee replacement after the 13-month period. December 2016 VA rehabilitation notes show right-knee range of motion as 5 – 80 degrees (passive) and 5 – 70 degrees (active). Later that month, VA orthopedic notes show the Veteran was able to do flexion at just over 90 degrees. January 2017 VA notes show the Veteran was undergoing therapy sessions. A January 2017 VA physical therapy consult shows range of motion measurements for right knee at 8 – 90 degrees (active, passive and resisted testing). In an August 2018 VA orthopedic note, the Veteran reported right-knee soreness and “he feels that it is unstable.” In this period through October 2019, the Veteran reported right-knee pain. The Veteran underwent a VA examination for knee and lower-leg conditions in August 2019 (associated with the file in October 2019), in which the VA examiner stated the December 2016 diagnosis of right-knee post-traumatic osteoarthritis, including arthroplasty/total right-knee replacement. He noted the Veteran’s reports of chronic pain, popping, loss of balance, swelling, and right-knee locking. Range of motion measurements show right-knee flexion at 5 to 95 degrees (140 degrees, normal), with no objective evidence of painful motion, and right-knee extension was at 95 to 0 degrees. Pain was noted on examination, but it did not result in or cause functional loss. Although the August 2019 VA examiner found pain and fatigue significantly limited functional ability with repeated use over a period of time, he found no further reduction of range of motion and restated the above measurements for flexion and extension. He further found pain and lack of endurance limited functional ability during flare-ups (increased pain and swelling), but, once again, found no reduced range of motion and restated the above measurements. As stated above, under Diagnostic Code 5055, “intermediate degrees” of residual weakness, pain or limitation of motion may warrant higher ratings, which may also be assigned by rating by analogy to Diagnostic Codes 5256, 5261 or 5262. Looking again to those diagnostic codes, the August 2019 VA examiner found there is no right-side ankylosis (Diagnostic Code (DC) 5256). He found limitation of motion for right-knee extension, but not to the measurements required for a higher rating (DC 5261). He made no finding of right-knee “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, and found there was no tibial and/or fibular impairment (DC 5262). The Board has looked the rating criteria of not only Diagnostic Code 5055, but to 3 additional diagnostic codes in an attempt to apply the findings on examination and treatment to those criteria. As discussed above, no findings in the record from February 1, 2018 satisfy the criteria for a higher rating. For the reasons stated and based on the medical evidence of record, the Board finds the preponderance of the evidence is against the claim for a disability evaluation in excess of 30 percent from February 1, 2018. Additionally, for both stages of the appeal period, the Board has carefully considered the Veteran’s February 2017 Board hearing testimony and that of the Appellant, as well as the Veteran’s reports to treatment providers and examiners, as they appear throughout the record for the appeal period. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and the Appellant are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. However, their lay evidence must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. Although the testimony and reports provided detailed testimony of the effects of the Veteran’s right-knee disorder and the later residuals of the total right-knee replacement, the Board assigns more probative value to the June 2012 and August 2019 VA examinations, as they were conducted by medical professionals after in-person examinations of the Veteran, they indicate thorough reviews of the Veteran’s medical history and they provide the relevant orthopedic findings which speak to the rating criteria of the applicable diagnostic codes. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion).   The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.