Citation Nr: 21022162 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-14 808A DATE: April 14, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee disability for the period from February 14, 2013 to February 10, 2016 is denied. Entitlement to a separate disability rating of 10 percent for right knee instability is granted. REMANDED Entitlement to an extension of the temporary total evaluation beyond April 1, 2017 for right knee disability status post total knee replacement is remanded. Entitlement to a disability rating in excess of 30 percent for right knee disability status post total knee replacement beginning April 1, 2017 is remanded. FINDINGS OF FACT 1. For the period from February 14, 2013 to February 10, 2016, the Veteran’s right knee disability has been manifested by range of motion from 0 degrees extension to no worse than 115 degrees flexion, with pain on examination. 2. Throughout the appeal, the Veteran’s right knee disability is productive of slight instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for right knee disability for the period from February 14, 2013 to February 10, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260. 2. The criteria for entitlement to a separate disability rating of 10 percent for right knee instability has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1985 to October 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2013 and October 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in January 2019. These matters were remanded by the Board in February 2020 for additional development. The Board notes 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. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, here the evidence reveals that the Veteran is employed and that he has not reported that his service-connected disability on appeal precludes substantially gainful employment. See Hearing Testimony, January 2019. Therefore, the issue of entitlement to a TDIU is not before the Board. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint’s range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. 1. Entitlement to a disability rating in excess of 10 percent for right knee disability for the period from February 14, 2013 to February 10, 2016. The Veteran contends that his right knee disability is more disabling than contemplated. The Veteran’s disability is rated at 10 percent disabling under Diagnostic Code 5260 for the period from February 14, 2013 to February 10, 2016. On February 10, 2016, the Veteran underwent total right knee replacement surgery, which warrants a convalescence period and a 100 percent disability rating for the period from February 10, 2016 to April 1, 2017 under Diagnostic Code 5055. Beginning April 1, 2017, the Veteran’s right knee disability is rated at 30 percent. Under Diagnostic Code 5260, flexion limited to 45 degrees is assigned a 10 percent rating, flexion limited to 30 degrees is assigned a 20 percent rating, and flexion limited to 15 degrees is assigned a 30 percent rating. Normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. When extension is limited to 5 degrees, a 0 percent rating is assigned under Diagnostic Code 5261. A 10 percent rating will be assigned for limitation of extension to 10 degrees; a 20 percent rating will be assigned for limitation of extension to 15 degrees; a 30 percent rating will be assigned for limitation of extension to 20 degrees; a 40 percent rating will be assigned for limitation of extension to 30 degrees; and a 50 percent rating will be assigned for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s right knee disability warrants a rating in excess of 10 percent based on limitation of motion. For an increased rating based on limitation of motion, the evidence must minimally establish that the Veteran’s right knee disability is manifested by flexion limited to 30 degrees (Diagnostic Code 5260), and/or by extension limited to 15 degrees (Diagnostic Code 5261). At no point during the appeal period has the Veteran’s right knee flexion shown to be less than 115 degrees or right knee extension shown to be other than normal, even with consideration of pain on range of testing, after repetitive range of motion testing, and with consideration of limitation of motion during flare-ups. See VA Examination, November 2013; see also Medical Treatment Records, June and October 2014. Hence, the criteria for an increased rating under either Diagnostic Code 5260 or 5261 are not met. In addition, the Veteran has never demonstrated or been diagnosed with ankylosis of the right knee, impairment of the tibia and fibula, genu recurvatum, or shown to have dislocated semilunar cartilage. Therefore, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not applicable. 2. Entitlement to a separate disability rating of 10 percent for right knee instability. The Board finds that the Veteran is entitled to a separate rating for his right knee instability, however, under diagnostic code 5257. 38 C.F.R. § 4.71a. Under Diagnostic Code 5257, the criteria for impairment of the knee, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. Id. The terms “slight,” “moderate,” and “severe” are not defined in the regulations. Knee subluxation is when the patella of the knee moves out of normal positioning and knee instability is either the feeling that one’s knee is about to give out or a catching or locking of the joint causing swelling and inability to straighten. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). Effective February 7, 2021, the new regulation changed Diagnostic Code 5257 from the subjective terms to detailed types of instability resulting in specific types of impairments. VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. Here, because the period under consideration the effective dates of the revised regulations, the Board will consider this claim under the former regulation only. Id. at 467; cf. VAOPGCPREC 3-2000 (which contemplates an appellate period that both precedes and succeeds the effective date of the regulatory change). The Veteran’s medical history demonstrates that the Veteran suffers from instability and often uses a cane or brace. See Medical Treatment Records, November 2013 and June 2014. Further, a February 2019 statement from the Veteran’s employer noted that he witnessed the Veteran’s knee visibly buckling while simply walking on uneven ground. Such limitation warrants a 10 percent rating, and no more, under DC 5257 because the preponderance of the evidence is against a finding of moderate instability. REASONS FOR REMAND 1. Entitlement to an extension of the temporary total evaluation beyond April 1, 2017 for right knee disability status post total knee replacement is remanded. 2. Entitlement to a disability rating in excess of 30 percent for right knee disability status post total knee replacement beginning April 1, 2017 is remanded. The Veteran contends that the temporary total evaluation for his right knee replacement warrants an extension beyond April 1, 2017 as well as a rating higher than 30 percent for the period following the temporary total evaluation. During the January 2019 hearing, the Veteran testified that after his knee replacement surgery, his ability to walk was limited. He stated that the knee replacement helped a bit, but he is still limited on how far he can walk, his pain level is at a three or four out of ten, and he cannot straighten or bend his leg completely without pain. In October 2020 a VA examination was conducted where the Veteran reported that he experiences flare ups, especially when he walks long distances. He stated that flare ups are moderate and can last a few hours. The examiner noted that the Veteran’s right knee range of motion was normal with no pain on examination. The examiner also stated that the Veteran’s total knee joint replacement has no residuals. The Board finds the October 2020 examination inadequate as it does not address the Veteran’s competent and credible testimony. On remand, a new examination should be obtained that addresses the severity of the Veteran’s right knee disability and the Veteran’s contention that he required convalescence for his right knee disability beyond April 1, 2017. The matters are REMANDED for the following action: 1. Obtain all outstanding medical records. 2. Afford the Veteran a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his right knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all right knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in 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. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page)   The examiner should also express an opinion as to whether it is at least as likely as not the Veteran required convalescence from his February 10, 2016 total right knee replacement surgery beyond April 1, 2017. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.