Citation Nr: 21021283 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-32 178 DATE: April 12, 2021 ORDER A rating in excess of 30 percent for status post total right knee replacement is denied. A rating in excess of 30 percent for status post total left knee replacement is denied. FINDING OF FACT The Veteran’s right and left total knee replacement disabilities have not more nearly approximated chronic residuals consisting of severe painful motion or weakness in the affected extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for status post right total knee replacement are not met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5055 (2020). 2. The criteria for a rating in excess of 30 percent for status post left total knee replacement are not met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5055 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1972 to April 1990. These matters come on appeal before the Board of Veterans‘ Appeals (Board) from an October 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously remanded by the Board in September 2018 for further development. At that time, the Board also denied initial compensable ratings for scars, status post total right and left knee replacement. Additionally, the Board remanded the issue of entitlement to a total disability rating based upon individual unemployability (TDIU). Thereafter, in a November 2019 rating decision, the RO granted entitlement to a TDIU effective January 16, 2009 based on his service-connected disabilities. A January 2020 rating decision assigned an earlier effective date of August 18, 2004, for the award of a TDIU. As such, the TDIU issue is no longer before the Board for consideration. Laws and Analysis for Right and Left Knee Disabilities Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2020). 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 there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. Where 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994; Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (2020). 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). The Veteran maintains that his right and left knee disabilities are more severe than what is contemplated by the currently assigned 30 percent evaluations. The Veteran’s bilateral total knee replacements are rated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5055, the prosthetic replacement of a knee joint is to be rated 100 percent disabling for 1 year following the implantation of the prosthesis. 38 C.F.R. § 4.71a. Following the 100 percent rating for one year, a 60 percent rating is warranted if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula). 38 C.F.R. § 4.71a, Diagnostic Code 5055. Diagnostic Code 5256 pertains to ankylosis of the knee. Ankylosis is immobility, consolidation, or fixation of a joint. Dorland’s Illustrated Medical Dictionary 94 (31st ed. 2007); Dinsay v. Brown, 9 Vet. App. 79 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). A 30 percent rating requires a favorable angle in full extension or in slight flexion between 0 and 10 degrees. Flexion between 10 and 20 degrees warrants a rating of 40 percent, while flexion between 20 and 45 degrees warrants a 50 percent rating. The maximum 60 percent rating is reserved for an extremely unfavorable angle in flexion at 45 degrees or more. Diagnostic Code 5261 concerns limitation of extension of the leg. Extension limited to 10 degrees merits a 10 percent rating. A 20 percent rating is assigned for extension limited to 15 degrees. Extension limited to 20 degrees is assigned a 30 percent rating. A 40 percent rating requires extension limited to 30 degrees. The maximum 50 percent rating is reserved for extension limited to 45 degrees. Diagnostic Code 5262 rates tibia and fibula impairment. 10, 20 and 30 percent ratings require malunion with slight, moderate, and marked knee or ankle disability respectively. The maximum rating of 40 percent is reserved for nonunion of the tibia and fibula with loose motion requiring a brace. Normally, flexion is to 140 degrees and extension to zero degrees. 38 C.F.R. § 4.71, Plate II. In this case, the RO properly assigned schedular 100 percent ratings for a period of one year following the right and left knee replacement, i. e., from August 30, 2010 to September 30, 2011 (right knee), and from September 19, 2011 to October 31, 2012 (left knee). Upon review of all evidence of record, the Board finds that the evidence weighs against the assignment of ratings in excess of 30 percent for the Veteran’s right and left knee disabilities under Diagnostic Code 5055. In this regard, the Veteran’s right and left knee extension has been shown to be normal (to 0 degrees) in the December 2012 and December 2020 VA examination reports, to include after repetitive use testing and during flare-ups. See December 2020 VA examination report (noting extension to 0 degrees during repetitive use of knee joints and during flare-ups). A private Knee Disability Benefits Questionnaire, conducted in July 2015, also showed normal extension bilaterally. The VA treatment records do not show any indication of limitation of extension in the knees more nearly approximating 30 degrees as required for a higher 40 percent rating under Diagnostic Code 5261. Additionally, at no time has the Veteran’s right or left knee flexion been shown to be any less than 90 degrees and there has been no indication of any ankylosis of the knee joints, to include after repetitive use testing and during flare-ups. See July 2015 Knee Disability Benefits Questionnaire; see also December 2012 and December 2020 VA examination reports. Moreover, there has been no indication of any malunion or nonunion of the tibia and fibula. Id. As such, rating by analogy to Diagnostic Codes 5256, 5261, or 5262 would not result in a higher rating than his currently assigned 30 percent rating. As it pertains to weakness of the knee joints, the December 2020 VA examiner specifically indicated that the Veteran had “intermediate degrees” of residual weakness and no reduction in muscle strength. See also December 2012 and July 2015 Knee Disability Benefits Questionnaire (similarly noting intermediate degrees of residual weakness). The 2020 VA examiner further noted that there was no functional loss due to weakness after repetitive use testing. The Board finds that the Veteran’s weakness in the right and left leg is therefore adequately contemplated by the currently assigned ratings. In addition, the Board considered whether higher ratings are warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that the provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). As stated above, the rating criteria for total knee replacements specifically contemplate pain. Further, although the examination reports discussion indicated that the Veteran had pain during range of motion testing, the limitation of motion was unchanged after repetitive use testing; thus, no additional loss was demonstrated. Thus, without clinical medical evidence indicating additional functional limitation, the Board is unable to find that the Veteran’s pain is so disabling as to limit flexion or extension of the knees actually or effectively to such an extent as to warrant assignment of higher ratings. Again, pain is already contemplated in the current 30 percent ratings. For these reasons, a rating in excess of 30 percent for either the right or left knee disability is not warranted. Accordingly, the Board finds that ratings in excess of 30 percent are not warranted for the right or left knee disability. In deciding this claim, the Board considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the observable symptoms of his knee disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, to the extent he believes that his pain, weakness, or instability are more severe than shown in the examinations, his statements must be weighed against the other evidence of record. The examination reports are based on consideration of the Veteran’s lay statements, relevant medical testing, and the examiners’ medical expertise. Therefore, they are of greater probative weight than the Veteran’s lay statements. As the preponderance of the evidence is against the claim for ratings in excess of 30 percent for the right and left knee disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R.R. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.