Citation Nr: 21021086 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 17-28 848A DATE: April 9, 2021 ORDER Entitlement to an increased disability rating of 60 percent, but no higher, for left knee status post total knee replacement is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a disability rating greater than 10 percent for service-connected right knee degenerative arthritis (right knee disability) based on limitation of flexion is denied. Entitlement to a separate 10 percent rating, but no higher, for right knee disability based on instability, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran's left knee status post total knee replacement symptoms more nearly approximated chronic residuals consisting of severe painful motion or weakness. 2. The Veteran’s right knee disability has not more nearly approximated flexion limited to 30 degrees or worse, to include consideration of functional loss during flare-ups. 3. The evidence is at least evenly balanced as to whether the Veteran has experienced at most slight right knee instability during the entire claim period. CONCLUSIONS OF LAW 1. The criteria for an increased 60 percent rating, but no higher, for left knee status post total knee replacement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1. 4.2, 4.6, 4.7, 4.21, 4.45, 4.59, 4.71a, DC 5055. 2. The criteria for an increased rating greater than 10 percent for right knee disability with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.10, 4.45, 4.59, 4.71a, DC 5260. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for a separate 10 percent rating, but no higher, for right knee disability with instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1954 to July 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted a separate 10 percent rating for the Veteran’s right knee disability with limitation of flexion and increased the Veteran’s left knee disability status post knee replacement rating to 30 percent, effective January 2, 2014. In July 2016 the Veteran filed a notice of disagreement (NOD) and in May 2017 the RO issued a statement of the case (SOC). In June 2017 the Veteran filed a substantive appeal (via VA Form 9). In December 2019 and again in September 2020 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to retrieve ongoing VA treatment records and outstanding private medical records regarding the Veteran’s right and left knee disabilities. The Board notes that following the last Board remand the Veteran was sent a VA Form 21-4142a for authorization to obtain private medical records. As the Veteran did not return such form, the Board finds that the RO has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In January 2021 the RO issued a supplemental statement of the case (SSOC). 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 evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 1. Left knee disability status post total knee replacement The Veteran’s left knee status post total knee replacement is rated 30 percent under 38 C.F.R. § 4.71a, DC 5055. The Board notes that 38 C.F.R. § 4.71a was amended effective February 7, 2021, which revised DC 5055. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76461 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5055). However, none of the changes would have any different effect on the rating adjudication with regard to his left knee disability, and the Board will proceed with the remainder of its decision. Under DC 5055, a 100 percent rating is assigned for four months (previously one year) following implantation of a knee prosthesis for a service-connected knee disability, followed thereafter by a 60 percent rating when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to DCs 5256, 5261, and 5262. The minimum rating is 30 percent under DC 5055. By way of history, the Veteran underwent a total left knee replacement in 2011 and 2013 and had to have knee manipulation twice in between his surgeries. He filed a claim for an increased rating in December 2014, asserting worsening symptoms. A July 2015 VA examiner noted that the Veteran’s left knee was abnormal or outside of normal range. The Veteran’s ROM measured flexion to 80 degrees and extension to 0 degrees. The Veteran exhibited pain during flexion and extension but not during weightbearing. In the July 2016 NOD the Veteran stated that the pain in his knee is frequently severe. In the June 2017 VA Form 9 the Veteran stated that the VA did not properly account for his corrective surgery which occurred in February 2013. The Veteran stated that he experiences a high degree of knee pain ranging from mild to extreme depending on his leg movement. The Veteran’s sleep is frequently interrupted because of knee soreness. An August 2017 VA treatment note indicates that the Veteran has normal range of motion of both knees. A June 2018 private treatment note indicates that the Veteran’s left knee has full extension while flexion ending at 95 degrees. No instability was noted. In a January 2020 letter the Veteran stated that flexion in his left knee is limited and that he experiences soreness all the time especially when stepping up or down and when kneeling. In light of the extent of left knee pain (reported as moderate to severe) and the significant functional limitations caused by the Veteran's left knee disability which include constant soreness, difficulty stepping up or down, and problems sleeping, the Board finds that the symptoms of the Veteran's left knee disability status post total knee replacement have more closely approximated the criteria for a 60 percent rating under DC 5055 (which contemplates chronic residuals consisting of severe painful motion or weakness). This is the maximum schedular rating under DC 5055. Regardless of any other impairments that may be associated with the Veteran’s service-connected left knee disability status post total knee replacement, the amputation rule allows for no more than a 60 percent rating for the Veteran's entire left knee disability. See 38 C.F.R. §§ 4.68, 4.71a, DC 5164. Therefore, a maximum 60 percent rating for the Veteran's left knee disability status post total knee replacement is warranted. 2. Right knee with limitation of flexion Under DC 5260, a 10 percent rating is warranted if flexion is limited to 45 degrees, a 20 percent rating if flexion is limited to 30 degrees, and a maximum 30 percent rating is warranted for knee flexion that is limited to 15 degrees. Under DC 5261, a 10 percent rating is warranted if extension is limited to 10 degrees, a 20 percent rating when limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71; Plate II. The Board again notes that 38 C.F.R. § 4.71a was amended effective February 7, 2021, which revised DC 5055. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76461 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5055). However, none of the changes would have any different effect on the rating adjudication with regard to his right knee disability, and the Board will proceed with the remainder of its decision. At a July 2015 VA examination the Veteran reported that he experienced flare-ups in his right knee when he climbs stairs and gets in and out of cars. The VA examiner noted that the Veteran’s right knee was abnormal or outside of normal range. The Veteran’s ROM measured flexion to 110 degrees and extension to 0 degrees. The Veteran exhibited pain during flexion but not during weightbearing. The VA examiner was unable to say without mere speculation whether the Veteran’s flare-ups would significantly limit his functional ability with repeated use over a period of time. In the July 2016 NOD the Veteran stated that his right knee requires corrective surgery but he chose to have his left knee replaced first because this allowed him to use his car. In the June 2017 VA Form 9 the Veteran stated that his right knee frequently slips out of the joint with increasing pain that causes him instability. The Veteran uses a brace as a result. A June 2017 medical receipt indicates that the Veteran was issued a brace for his right knee. An August 2017 VA treatment note indicates that the Veteran has normal range of motion of both knees. A January 2020 private treatment note indicates that the Veteran has good extension and flexion but experiences pain. No instability in either knee was noted. The Veteran was given a cortisone injection to relieve his pain. A May 2020 private treatment note indicates that the Veteran experienced severe right knee pain and that it gives out at times. As a result of these symptoms the Veteran is considering have his right knee replaced. For the following reasons, an increased rating greater than 10 percent is not warranted. At worst, the Veteran’s ROM measured flexion at 110 degrees which does not warrant a compensable rating under DC 5260. However, it is the intention of the rating schedule to recognize actual painful, unstable or malaligned joints, due to healed injury, and the Veteran has been granted a 10 percent rating pursuant to 38 C.F.R. § 4.59. Even considering the Veteran's lay statements regarding pain and the corresponding functional impairment, the evidence of record is not reflective of, or consistent with, motion limited to 30 degrees. More information as to functional impairment during this period would not overcome this large gap from the specified motion loss. Thompson v. McDonald, 815 F.3d 781, 785 Fed. Cir. 2016) ("[I]t is clear that the guidance of 38 C.F.R. § 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."). Therefore, when considering all of the ROM tests of record, entitlement to an increased rating greater than 10 percent is not warranted under DC 5260. The Court has emphasized that when assigning a disability rating it is necessary to consider limitation of a joint's functional ability due to flare-ups, fatigability, incoordination, and pain on movement, or when it is used repeatedly over a period of time, functional loss due to flare-ups, fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Joints should be tested 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). 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. Even though the July 2015 VA examiner did not specifically estimate range of motion during flare-ups, a remand is not necessary as the evidence reflects that the Veteran's right knee symptoms during flare-ups are not so severe and consistent that they result in symptoms more nearly approximating the criteria for 20 percent rating, specifically, limitation of flexion to 30 degrees. 38 C.F.R. §§ 4.40, 4.45, 4.59; English v. Wilkie, 30 Vet. App. 347 (2018) (the Board must adequately explain how it considered functional loss due to pain, including during flare-ups); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). Furthermore, the Veteran’s right knee disability has not exhibited ankylosis, removed semilunar cartilage, dislocated semilunar cartilage, limitation of extension, or impairment of the tibia and fibula in the right knee which would warrant separate ratings under DCs 5259, 5258, 5261 or 5262. For the foregoing reasons, the preponderance of the evidence is against the assignment of a rating greater than 10 percent for right knee disability with limitation of flexion. Thus, the benefit of the doubt doctrine is not for application in this regard. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record) 3. Right knee instability Separate disability 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. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See also VAOPGCPREC 9-04 (holding that separate ratings under DC 5260 for limitation of flexion of the knee and DC 5261 for limitation of extension of the knee may be assigned). Moreover, in VAOPGCPREC 23-97, VA Office of General Counsel (OGC) opined that it was not pyramiding to assign ratings under DC 5257 (knee instability) and DC 5260/61 based on additional disability. The opinion explained that DC 5257 addressed instability of the knee without reference to limitation of motion, and DC 5003 referenced limitation of motion without instability. Id. at para. 2. In other words, the two DCs addressed different manifestations or symptoms. The above evidence reflects that the Veteran reported instability and/or giving out of his right knee at various points throughout the entire claim period. Despite the fact that stability testing of the right knee was normal throughout the claim period, DC 5257 does not require medical evidence of lateral instability for a rating to be assigned. Instead, the Board must address any relevant lay evidence and compare it to the medical evidence to determine which is more probative, keeping in mind that objective medical evidence is not automatically more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347, 349 (2018). The Veteran is competent to report observable symptoms of his knee disability, such as instability. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n4 (Fed. Cir. 2007). Moreover, he was issued a right knee brace which he regularly used to assist him with stability. While various VA physicians did not find any joint instability, none of them addressed the Veteran's complaints of giving way/instability of his knee. Thus, the Board finds that the Veteran's reports of knee instability throughout the entire claim period are credible. Based on the clinical evidence and the Veteran's competent and credible reports of knee instability during the claim period, the Board finds that the evidence is approximately evenly balanced on the question of whether the Veteran experienced recurrent subluxation or instability of the right knee. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a separate compensable rating for right knee instability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As previously mentioned, there has been a regulation change to DC 5257, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria are more favorable to the Veteran will be applied. However, the amended regulations cannot be applied any earlier than the February 7, 2021 effective date of the amendments. Under the old criteria for DC 5257, knee impairment with recurrent subluxation or lateral instability is rated as follows: a 10 percent rating is warranted if the condition is slight; a 20 percent rating is warranted if the condition is moderate; and a 30 percent rating is warranted if the condition is severe. 38 C.F.R. § 4.71a, DC 5257. The Rating Schedule does not define the terms "slight," "mild," "moderate," "marked," and "severe," and VA evaluates all of the evidence such that decisions are "equitable and just." 38 C.F.R. § 4.6. In light of the normal stability findings on examination during the claim period, the Board finds that the right knee instability was at most slight during the claim period and did not more nearly approximate moderate instability. Therefore, a separate rating greater than 10 percent is not warranted for left knee instability. J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.