Citation Nr: 21023157 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-16 758 DATE: April 20, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis prior to December 11, 2014 is denied. Entitlement to a disability rating in excess of 60 percent for right total knee replacement (TKR) from December 11, 2014, notwithstanding the period prior to February 1, 2016 for which a temporary total rating was assigned, is denied. FINDINGS OF FACT 1. Prior to December 11, 2014, the Veteran’s right knee osteoarthritis was manifested by pain, weakness, and flexion limited to no less than 80 degrees. 2. From February 1, 2016, the Veteran’s service-connected right TKR was manifested by pain, decreased motion, weakness, and instability. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260-5003. 2. The criteria for an evaluation in excess of 60 percent, from February 1, 2016, for right TKR have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1958 to August 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) regional Office (RO) in Guaynabo, Commonwealth of Puerto Rico. The case was subsequently transferred and is now in the jurisdiction of the St. Petersburg, Florida RO. This matter was previously before the Board in August 2015, December 2017, and March 2020 and remanded to the AOJ for further development. As summarized in the most recent Board remand, in August 2015, the issue was remanded to afford the Veteran a Board hearing. In December 2015, the Veteran requested his hearing be cancelled due to health issues. No request to reschedule was received. In December 2017, the Board directed that the Veteran be afforded an additional VA examination compliant with Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Most recently, in March 2020, the Board found that the previously ordered examination, conducted in March 2018, was inadequate because although the March 2018 VA examiner noted the impact of flare-ups on the Veteran’s right knee disability, the examiner did not obtain the Veteran’s lay statements as to the extent of his functional loss during a flare-up or offer range of motion estimates based on that information. Nor did the examiner indicate whether the inability to provide a range-of-motion estimate without resorting to speculation was due to lack of knowledge among the medical community or based on the lack of procurable information. Thus, the Board found that a remand was necessary to obtain any outstanding VA and private treatment records as well as to afford the Veteran a new VA examination addressing the current level of severity of the Veteran’s right knee disability that was complaint with the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Notably, the Board also indicated that a claim for TDIU was inextricably intertwined with his claim for an increased rating for the service-connected right knee disability, and in a December 2021 memorandum, the RO acknowledged referral of the issue of entitlement to a TDIU. Because this issue has not yet been adjudicated by the RO, the Board does not have jurisdiction over it. The RO requested that the Veteran complete and return authorization forms to obtain private records; the Veteran did not return the authorization form but submitted private treatment records in April 2020, and additional VA treatment records were added to the Veteran’s claims file in May 2020. The Veteran was additionally afforded the requested VA examination in December 2020. Thus, the Board finds that there has been substantial compliance with the March 2020 remand. Stegall v. West, 11 Vet. App. 268 (1998). Following the requested development, in a December 2020 rating decision, the RO awarded a temporary 100 percent rating from December 11, 2014 for a right total knee replacement and a 60 percent rating from February 1, 2016 pursuant to Diagnostic Code 5055. Notably, this decision indicates that this award was considered a partial grant of his increased rating currently on appeal, and in issuing the SSOC in December 2020, the RO characterized the issue on appeal as entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis prior to December 11, 2014 and a rating in excess of 60 percent thereafter. Thus, as the Veteran’s total knee replacement and residuals is a progression of his right knee osteoarthritis, the Board will address whether a higher rating is warranted for the Veteran’s right knee disability for the period prior to December 11, 2014 and the period from February 1, 2016; however, the total 100 percent rating for the period between December 11, 2014 and February 1, 2016 constitutes a full award of the benefits sought on appeal, as no higher rating is available. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The December 2020 rating also granted service connection for a right knee surgical scar associated with his right TKR, assigning a noncompensable evaluation effective December 11, 2014. The rating decision informed the Veteran, that “[t]his decision is ancillary to the issue on appeal. It is regarded as inextricably intertwined with the appellate issue decided herein.” The Board notes that the Veteran has not expressed disagreement with the rating or effective date assigned for the right knee surgical scar. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (reflecting that “downstream” issues, such as the compensation level and the effective date assigned for a service-connected disability, must be separately appealed). Accordingly, any downstream issues involving the right knee surgical scar are not before the Board at this time. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Increased Rating Disability ratings are determined by applying the criteria set forth in 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 ratings 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis prior to December 11, 2014 Prior to December 11, 2014, the Veteran was in receipt of a 10 percent disability rating pursuant to Diagnostic Code 5260-5003. He contends that he is entitled to a higher disability rating. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is non-compensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Under DC 5260, limitation of flexion to 60 degrees warrants a noncompensable evaluation. Limitation of flexion to 45 degrees warrants a 10 percent evaluation, and limitation of flexion to 30 degrees warrants a 20 percent evaluation. Lastly, limitation of flexion to 15 degrees warrants a 30 percent evaluation, the highest schedular evaluation under this diagnostic code. 38 C.F.R. § 4.71a. Standard range of motion of a knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. A June 2011 VA examination notes that the Veteran described right knee pain, which moderately limited his ability to ambulate and his tolerance for standing; it also made it difficult to use stairs. The examination notes that the Veteran experienced pain, giving way, decreased speed and range of motion. However, he did not have instability, weakness, incoordination, subluxation, recurrent effusion, or flare-ups. He was able to stand for about 15 to 30 minutes and walk one quarter mile; he always used a cane for ambulation. Upon range of motion testing, the Veteran’s right knee flexion was limited to 110 degrees; extension was normal. He had objective evidence of pain after three repetitions, but there was no additional functional limitation. A June 2011 x-ray revealed degenerative changes in the right knee. Due to his right knee disorder, the Veteran had problems lifting and carrying, decreased strength in the right lower extremity, and pain. His right knee had a moderate to severe impact on his activities of daily living, excluding feeding. A March 2012 VA treatment record notes that the Veteran had right knee pain secondary to osteoarthritis. He was a candidate for surgery but preferred to avoid surgery. He had constant severe knee pain and could not be seated longer than 30 minutes or he had significant difficulty rising. He was unable to stand or walk more than 5 to 10 minutes without pain. He ambulated with a cane and a brace. He was independent in his activities of daily living. He had full extension in the right knee and active flexion was limited to 90 degrees. March 2012 and April 2012 physical therapy records note that the Veteran used a cane for ambulation and described intermittent pain, worse after being seated for a while. He reported that he had occasional feelings of weakness, was unable to stand or walk for extended periods of time, and had right knee buckling. These records note that the Veteran was independent with his activities of daily living but had difficulty performing these tasks and experienced reduced endurance. His right knee flexion was to between 100 and 105 degrees; extension was to 18 degrees. Notably, the records indicate that the Veteran His muscle strength on the right was noted as 4/5 due to pain. His balance was fair; he walked with a moderate limp with weightbearing but performed activities in a reasonable timeframe. He was able to sit for 30 minutes and stand for 10 to 15 minutes. In addition to walking with a cane, the Veteran used a right knee brace, which he indicated “held” the knee and prevented falls. He was additionally receiving injections in his right knee and surgery had been recommended, but the Veteran declined surgery at this time. In his April 2012 Notice of Disagreement, the Veteran reported that his right leg was locking, twisting, and unstable. He also indicated that, after sitting, it was difficult to get up and walk due to the pain he experienced. A March 2013 VA treatment record notes that the Veteran had bilateral knee pain and severe osteoarthritis that caused impairment to gait with the use of his cane. The Veteran was trained in the use of a walker with front casters, which was more secure than the single tip cane that he was currently using. The Veteran had significant pain when he rose to stand up and when he started to walk. He had to sit every “some” steps. He indicated that he had lost his knee strength and the knee had buckled. He could no longer walk only with the cane; he was able to drive. He did not want to have surgery. Active range of motion was noted as flexion to 80 degrees and full extension; passive range of motion noted flexion to 90 degrees and full extension. An August 2014 VA examination notes a diagnosis of right knee osteoarthritis. The Veteran reported experiencing constant severe right knee pain. He endorsed experiencing flare-ups, which resulted in difficulty walking. Upon range of motion testing, his right knee flexion was limited to 80 degrees, with painful motion beginning at 60 degrees; extension was normal with no objective evidence of painful motion. There was no additional loss of motion after three repetitions. Due to the Veteran’s right knee osteoarthritis, he experienced less movement than normal, excess fatigability, pain on movement, and deformity. Muscle strength and joint stability testing in the right were normal. He did not have recurrent patellar subluxation or dislocation or a meniscal condition. The Veteran used a brace and a walker regularly for ambulation. The examiner indicated that the Veteran’s right knee disability did not impact his ability to work. Finally, the examination notes that pain at the right knee could significantly limit functional ability during a flare-up or when the joint was used over a period of time; however, there was no evidence of weakness, fatigability, or incoordination. The examiner indicated that, to express additional limitation due to pain in terms of additional range of motion would be speculative since the Veteran was not experiencing a flare-up at the time of the examination. As an initial matter, regarding the June 2011 and August 2014 VA examination, the Board acknowledges that in its December 2017 remand, the Board indicated that it was unclear whether pain during active and passive motion was described or whether pain on weight bearing was observed, and therefore found the examination was inadequate to this extent. Consequently, the Board ordered a new examination at that time addressing the current level of severity of his right knee disability, without requesting a retrospective medical opinion regarding his right knee disability prior to his total knee replacement. Nevertheless, the Board finds that another remand is not necessary. In this regard, the Court, in Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint. In reviewing the June 2011 and August 2014 examinations, the Board notes that all range of motion measurements were performed under active, weight-bearing motion; thus, the Board finds that it is reasonable that any clinician-assisted passive, non-weight bearing motion would reveal greater range of motion. This type of motion would be less beneficial to the Veteran’s claim. Furthermore, the examinations addressed the Veteran’s left knee measurements. Thus, to the extent that there are Correia deficiencies in these VA examinations, the Board finds that these deficiencies are harmless errors. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also recognizes that the August 2014 examination indicates that the Veteran experienced flare-ups which may result in additional limitation, but the examiner was unable to say without resorting to speculation as to whether he had additional loss of range of motion. The Board, although cognizant of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), however, notes that the Veteran indicated that his flare-ups made walking difficult; he did not describe any additional functional loss or impairment, however. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). After a review of the evidence, the Board finds that a rating in excess of 10 percent prior to December 11, 2014 for the Veteran’s right knee osteoarthritis under DC 5260 is not warranted. At no time during this period was the Veteran’s right knee flexion limited to 30 degrees or less; thus, the Board finds that a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.71a; DC 5260. The Board acknowledges that, in VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004), the VA General Counsel held that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a Veteran may receive a rating for limitation in flexion only, limitation of extension only, or separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension). Where a Veteran has both a limitation of flexion and limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. In this regard, the Board recognizes that the Veteran’s physical therapy records from March 2012 and April 2012 note that his right knee also had limited extension; however, the Board finds that this evidence, noted in only two physical therapy records, is not consistent with the other clinical findings of record, and not reflective of the disability picture of the right knee disability as a whole. Nor is there any other indication in the record that the Veteran has reported limitation of extension. Thus, the Board finds that these two notations of limited extension do not require a separate or staged rating when considering the length and severity of the symptoms in question. See 38 C.F.R. § 4.71a, DC 5261. Additionally, the Board finds that a separate rating is not available under DC 5257. The Board acknowledges that the Veteran has credibly reported that his knee is unstable, gives way, or buckles and requires the use of assistive devices to aid in ambulation. The Board observes that the terms “unstable” and “instability” can have many meanings and may not directly implicate “lateral instability” of the knee joint as contemplated by the rating criteria. The Board notes that ratings based on limitation of motion, including weakness, incoordination, and fatigue reasonably contemplate instability in the normal plane of knee motion, such as giving way. “Lateral” instability is a specific clinical finding that is determined by clinical testing, such as varus and valgus stress testing, and which is not contemplated in a rating based on limited motion. It is for this reason that separate ratings may be applied for limited motion and lateral instability where appropriate symptomatology is demonstrated. Testing for lateral instability has been uniformly negative. As discussed above, none of the medical evidence of record has indicated that the Veteran experienced subluxation or lateral instability. Indeed, the VA examiners, even considering the Veteran’s reports of giving way, nonetheless found that he did not have recurrent subluxation or lateral instability. While giving way and buckling has been described by the Veteran, and while he has expressed a feeling of instability, the criteria under Diagnostic Code 5257 are specific in referring to “lateral” instability, and not instability in the normal plane of motion, which has been considered as weakness or a combination of pain and weakness. While cognizant of English v. Wilkie, 30 Vet. App. 347 (2018), as there is clinical support for weakness in this case, but no clinical support for true lateral instability, the Board has considered the Veteran’s reports of feeling unstable as equivalent to weakness or giving way, and not true lateral instability or subluxation, thus findings that the clinical evidence of record to be the most probative evidence of record in this regard. Accordingly, the evidence weighs against any separate compensable rating under Diagnostic Code 5257. The Board next turns to Diagnostic Codes 5256, 5258, 5259, and 5262. However, it finds that higher or additional ratings are not warranted under these codes at any point during this period. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262. Although the Veteran reported symptoms of locking in April 2012, the Board finds that this single report of locking appears to be an outlier, unsupported by the clinical evidence of record. Indeed, there is no other evidence, lay or medical, that indicates that the Veteran had semilunar cartilage that was either dislocated or removed, at any time prior to December 11, 2014, nor is there otherwise any other reports from the Veteran that he experienced locking of the right knee throughout this period. Therefore, the Board finds that the probative value of the Veteran’s April 2012 report of right knee locking is outweighed by the remaining evidence of record, and a separate or higher rating is not available under Diagnostic Codes 5258 or 5259. Nor is a separate rating under DC 5256 or 5262 warranted because there is no medical evidence of record indicating right knee ankylosis or impairment of the tibia and fibula throughout this period. 38 C.F.R. § 4.71a. Finally, the Veteran is already separately service connected for his right genu varum deformity pursuant to DC 5263, which is not currently on appeal; thus, the Board need not address whether a higher rating is available under this Diagnostic Code. Furthermore, under Diagnostic Code 5003, a 10 percent evaluation is the highest possible evaluation for the Veteran’s right knee disability as the right knee joint is a single major joint. The Board acknowledges that the evidence reflects that the Veteran has complained of pain and weakness and additional functional loss due to these symptoms. However, there is no probative evidence of record indicating that the Veteran’s right knee disability more closely approximated flexion of the right knee to 30 degrees or less prior to December 11, 2014 with repetitive use or during flare-ups. Rather, the evidence of record reflects forward flexion in excess of 30 degrees, including after repetitive use testing, and although the August 2014 VA medical examination notes that the Veteran reported flare-ups, the Veteran only described experiencing increased pain or difficulty walking. Thus, while the Board recognizes that the Veteran complained of ongoing right knee pain with flare-ups during this period on appeal, there is no indication that the Veteran’s right knee disability was so disabling as to approximate the level of impairment required for assignment of a higher rating under the limitation of motion criteria at any time during the period on appeal. The Board thus finds that the current rating assigned for the right knee during the period on appeal sufficiently compensates the Veteran for the extent of his functional loss due to limited movement and pain. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, because the Veteran is already receiving the minimum compensable rating for pain, 38 C.F.R. § 4.59 is not applicable. In summary, the Board finds that an initial rating in excess of 10 percent is not warranted for the Veteran’s right knee osteoarthritis for the period prior to December 11, 2014. 38 C.F.R. § 4.71a; DC 5260-5003. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. Entitlement to a disability rating in excess of 60 percent for right total knee replacement (TKR) from December 11, 2014, notwithstanding the period prior to February 1, 2016 for which a temporary total rating was assigned, is denied. The Veteran underwent a right total knee replacement on December 11, 2014, for which he was subsequently granted a 100 percent disability rating, effective December 11, 2014. Following the initial one-year post-implantation period, the Veteran was assigned a 60 percent disability rating for his residuals pursuant to Diagnostic Code 5055, effective February 1, 2016. He contends that he is entitled to a rating in excess of 60 percent for his right TKR residuals. Total knee replacements are rated under 38 C.F.R. § 4.71a, and DC 5055. DC 5055 provides for a total rating for the first year following implantation of a knee replacement (prosthesis); a 60 percent rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a minimum rating of 30 percent for intermediate degrees of residual weakness, pain or limitation under the appropriate diagnostic code for less severe residuals. The Board notes that the “amputation rule” precludes the assignment of a rating in excess of 60 percent for a disability of the knee. The “amputation rule” provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. 38 C.F.R. § 4.68. Amputations of the lower extremity are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5160-5173. Diagnostic Code 5163 allows for a 60 percent rating for amputation of the leg with a defective stump and thigh amputation recommended. Diagnostic Code 5164 allows for a 60 percent rating for amputation of the leg not improvable by prosthesis controlled by natural knee action. For a rating higher than 60 percent, there must be amputation up to the upper third of the thigh. 38 C.F.R. § 4.71a, Diagnostic Code 5161. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. Notably, however, the only changes to the pertinent rating criteria following the February 7, 2021 amendments pertains to the period for which a temporary 100 percent rating is warranted under Diagnostic Code 5055. Specifically, under the pre-amended criteria, a 100 percent rating was assigned for one year following implantation of a prosthesis. Under the post-amended criteria, this temporary 100 percent rating is available for four months following such implantation. The pertinent Diagnostic Codes addressing amputation of the lower extremity, Diagnostic Codes 5161 through 5265, remain unchanged. Thus, as the Board is considering whether a higher rating is warranted for his right TKR from February 1, 2016, the regulation changes effective February 17, 2021 do not affect the Board’s analysis. The record reflects that the Veteran had a right total knee replacement with bone autograph and lateral patellar retinaculum release performed on December 11, 2014 to treat his right knee degenerative joint disease with varus deformity. A November 2017 VA examination notes a diagnosis of right knee osteoarthritis, and the Veteran claimed that he had right knee instability related to this disorder. The Veteran endorsed experiencing flare-ups of pain in the right knee daily, which lasted hours and caused loss of balance and loss of strength in his knee. Upon range of motion testing, his right knee flexion was limited to 100 degrees due to pain and extension was normal. Pain was noted on weightbearing, and there was evidence of crepitus and localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional functional loss of the right knee after three repetitions, but the examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or with flare-ups without resorting to mere speculation. Right knee muscle strength on flexion and extension was noted as a 4 out of 5. The examination notes slight recurrent subluxation and lateral instability on the right. The examination also notes that the Veteran had a total right knee replacement in 2014 with chronic residuals of painful motion or weakness. The Veteran used a brace and cane constantly for ambulation due to right leg weakness. The examiner indicated that the Veteran’s right knee disability impacted his ability to work only with weightbearing. Finally, the examiner indicated that there was no functional impairment of the right knee such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner indicated that his right knee disability impacted his ability to work but provided no further explanation. The examiner did however note that his right knee disability only affected his ability to bear weight. A March 2018 VA examination notes that the Veteran underwent a right TKR in 2014 for his right knee osteoarthritis. He reported that his pain was rated as a 6 to 7 out of 10 and he had flare-ups described as severe right knee pain. The Veteran reported functional loss as difficulty walking. Upon range of motion testing, the Veteran’s right knee flexion was limited to 90 degrees due to patellar tenderness and extension was normal, although he experienced pain with both flexion and extension. There was evidence of pain on weightbearing and objective evidence of crepitus. There was no additional functional loss after three repetitions. The examiner indicated that pain at the right knee joint could significantly limit functional ability during flare-ups or when the joint was used over a period of time; however, to express additional limitation due to pain in terms of degree of range of motion was not possible because it would speculative given that he was not currently experiencing a flare-up. The Veteran’s right knee muscle strength was noted as 4 out of 5. He did not have atrophy or ankylosis. Following his total knee joint replacement, the Veteran experienced chronic residuals consisting of severe painful motion or weakness and used a walker regularly for ambulation. The examiner indicated that there was no functional impairment of the right knee such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examination notes that the Veteran would be able to perform sedentary work duties with restrictions, including avoiding prolonged standing, walking, or climbing. An April 2020 correspondence from the Veteran indicated that his right knee pain had increased due to his left ankle disability; he now had to put more pressure on his right knee when standing or walking to avoid more pain on the left foot. A December 2020 VA examination notes that the Veteran had a TKR on the right in 2014 which has worsened. The examination notes that the Veteran denied flare-ups and denied any functional loss or impairment, including with repeated use over time. Upon range of motion testing, the Veteran’s right knee flexion was limited to 75 degrees and extension was limited to 20 degrees, which resulted in impaired ambulation. There was no evidence of pain on weightbearing or objective evidence of crepitus. There was no additional functional loss after three repetitions. The examiner indicated that the Veteran’s right knee disability impaired his ability to perform long distance ambulation and standing long periods; he needed assistive devices. The Veteran’s right knee muscle strength was noted as 4 out of 5. He did not have ankylosis, but atrophy measured as .5 centimeters was indicated. Following his total knee joint replacement, the Veteran experienced intermediate degrees of residual pain, weakness, or limitation of motion. He used a walker constantly for ambulation. The examiner indicated that there was no functional impairment of the right knee such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examination notes that, due to his right knee disability, he had impaired ability to stand and walk. After a review of the evidence, the Board notes that the Veteran’s right TKR residuals consist of pain, decreased motion, weakness, and instability for the period from February 1, 2016. The Veteran is currently in receipt of a 60 percent evaluation for this period; this is the highest evaluation afforded under the Diagnostic Code, following the period in which a 100 percent rating is warranted for post-implantation of the prosthesis. The Board has considered whether an evaluation greater than 60 percent may be granted under other diagnostic codes but finds that an evaluation greater than 60 percent cannot be warranted from February 1, 2016. See 38 C.F.R. § 4.68. The medical evidence does not reflect manifestations approximating loss of the upper third of the thigh. See 38 C.F.R. § 4.71a, Diagnostic Codes 5161, 5160. First, the VA examiners specifically noted that the Veteran’s right knee disability is not so diminished in function that amputation with prosthesis would serve him equally. Second, the medical evidence does not show the Veteran lost the use of his right extremity above or below the knee. He remains able to ambulate with the right lower extremity with the use of assistive devices. Finally, although he does experience, pain, limited range of motion, weakness, and instability he remains able to move his right knee joint and to bear weight on it. To the extent that the Veteran contends that he has other right knee impairment that has not been considered under his currently assigned rating, as noted above, 38 C.F.R. § 4.68, known as the amputation rule, bars the award of a rating for an extremity in excess of the rating for the amputation at the elective level for the extremity. As relevant here, amputation of the leg at the knee warrants a 60 percent rating under DC 5162. 38 C.F.R. § 4.71a. As the Veteran is already in receipt of a 60 percent rating for his right knee, additional ratings for the knee itself are not permitted. Finally, to the extent that there are deficiencies in the VA examinations during this period, the Board notes that 60 percent is the maximum schedular rating that may be granted for the right knee, without demonstrating amputation or the functional equivalent of amputation. As each of the VA examiners found that the Veteran’s right knee disability was not manifested by functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis, and the Veteran has not contended otherwise, the Board finds that any such errors in the VA examinations are harmless. Moreover, as the Veteran is in receipt of the maximum schedular rating for his right knee disability under the limitation of motion criteria, any deficiencies in the VA examinations of record concerning range of motion testing described in the final sentence of 38 C.F.R. § 4.59, or assessment of additional functional impairment on flare-up is rendered harmless. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As such, additional development regarding the right knee disability would not result in any further benefit to the Veteran and would cause an unnecessary delay in the adjudication of the case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Based on the foregoing, the Board finds that a rating in excess of 60 percent for right TKR from December 11, 2014, notwithstanding the period prior to February 1, 2016 for which a temporary total rating was assigned. As the preponderance of the evidence is against the assignment of higher ratings, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 49. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.