Citation Nr: 21023535 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-30 387 DATE: April 20, 2021 ORDER Entitlement to a higher initial rating in excess of 10 percent for limitation of flexion associated with left knee degenerative joint disease (DJD) from June 2, 2011 to June 18, 2018 is denied. Entitlement to a higher initial rating in excess of 30 percent for status post total left knee replacement from August 1, 2019 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected left knee disability (TDIU) from October 1, 2011 is remanded for referral to the VA Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). FINDINGS OF FACT 1. From June 2, 2011 to June 18, 2018, the limitation of motion associated with the left knee DJD manifested as flexion between 45 degrees and 100 degrees, and extension at 0 degrees, without evidence of ankylosis. 2. For the rating period on appeal from June 2, 2011 to June 18, 2018, the left knee DJD did not manifest as ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum, to warrant a higher or separate compensable rating. 3. From August 1, 2019, the status post total left knee replacement manifested as pain, effusion, limitation of flexion, and shin splints, without evidence of chronic residuals consisting of severe painful motion or weakness in the left knee. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating in excess of 10 percent for left knee DJD due to limitation of flexion, from June 2, 2011 to June 18, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2020). 2. The criteria for a higher initial rating in excess of 30 percent for status post total left knee replacement from August 1, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 1992. This matter is on appeal from a May 2013 rating decision issued by the Regional Office (RO) in Winston-Salem, North Carolina. This case involves a long procedural history, which the Board will abbreviate for brevity. These matters were previously before the Board in October 2018. The Board remanded the left knee rating issues in order to obtain additional treatment records. The TDIU issue was remanded because it was intertwined with the left knee rating. An August 2020 supplemental statement of the case (SSOC) denied the issues on appeal. These matters were before the Board again in November 2020. The Board remanded the left knee rating issues in order to conduct a new VA examination and remanded the TDIU because it was intertwined. A VA examination was conducted in January 2021. A January 2021 SSOC denied the issues on appeal. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Disability 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. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (double “compensation” for the same symptom or impairment is prohibited). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. §§ 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The appropriate diagnostic codes for rating limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted 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, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in flexion under Diagnostic Code 5260 (leg, limitation of flexion) and extension under Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. During the pendency of this appeal the diagnostics codes in 38 C.F.R. § 4.71a have been revised, pertinent to this case Diagnostic Codes 5257 and 5262. Diagnostic Code 5257, prior to the February 7, 2021 revision, contemplated “other impairment” of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Diagnostic Code 5262, prior to February 7, 2021, contemplated impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words “slight,” “moderate,” “severe,” and “marked” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present. Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation 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. In the absence of limitation of motion, a 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. VA’s Office of General Counsel has provided guidance concerning increased rating claims for knee disabilities. VA’s General Counsel interpreted that compensating a claimant for separate functional impairment under Diagnostic Code (DC) 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban, 6 Vet. App. 259, 262; Lyles, 29 Vet. App. 107. In VAOPGCPREC 9-98, VA’s General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. §§ 4.59. In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by X-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent X-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant’s painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The VA General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 38 C.F.R. §§§ 4.40, 4.45, and 4.59 must be considered. Diagnostic Code 5055 provides a total rating (100 percent) for one year following prosthetic replacement of a knee joint. Once any applicable total rating period has elapsed, as is the case here, under Diagnostic Code 5055 a 30 percent rating is to be assigned where there are intermediate degrees of residual weakness, pain, or limitation of motion rated by analogy to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is to be assigned if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. The minimum rating that may be assigned for a prosthetic knee is 30 percent. Following the assignment of a total disability rating, the maximum schedular rating that can be assigned under Diagnostic Code 5055 is 60 percent. The Veteran is service-connected for a total left knee preplacement (previously rated as degenerative joint disease in the left knee), which was rated at 10 percent from June 2, 2011 under DC 5260, 100 percent from June 18, 2018 under 38 C.F.R. § 4.30 for convalescence, and then 30 percent from August 1, 2019 under DC 5055. 1. Left Knee Limitation of Flexion Rating from June 2, 2011 to June 18, 2018 After reviewing the evidence of record, lay and medical, the Board finds that, for the rating period on appeal from June 2, 2011 to June 18, 2018, the limitation of flexion associated with the left knee DJD manifested as flexion between 45 degrees and 100 degrees, and extension at 0 degrees, without evidence of ankylosis. See January 2012 VA Examination (The VA examiner measured flexion at 45 degrees, extension at 0 degrees, and did not diagnose the Veteran with ankylosis); March 2013 VA Examination (The VA examiner measured flexion at 90 degrees, extension at 0 degrees, and did not diagnose the Veteran with ankylosis); April 2013 VA Treatment Records (The VA examiner measured flexion at 90 degrees); December 2013 VA Treatment Records (The VA examiner measured flexion at 90 degrees); March 2016 VA Examination (The VA examiner measured flexion at 90 degrees, extension at 0 degrees, and did not diagnose the Veteran with ankylosis); December 2016 VA Examination (The VA examiner measured flexion at 90 degrees, extension at 0 degrees, and did not diagnose the Veteran with ankylosis). Even considering additional functional limitations due to pain and weakness, the evidence does not show a higher rating in excess of 10 percent for limitation of flexion, or separately compensable limitation of extension (under DC 5261), to be warranted. For these reasons, the Board finds that the criteria for a higher initial disability rating in excess of 10 percent for the left knee DJD due to limitation of flexion for the period on appeal, from June 2, 2011 to June 18, 2018, have not been met; therefore, the appeal for a higher initial rating for the aforementioned time period must be denied. No Other Separate or Higher Left Knee Ratings The evidence of record does not establish, and the Veteran does not contend, that the left knee exhibited ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum for the rating period on appeal, from June 2, 2011 to June 18, 2018, to warrant higher or separate compensable disability ratings. See January 2012 VA Examination; March 2013 VA Examination; March 2016 VA Examination; December 2016 VA Examination. See 38 C.F.R. § 4.71a Diagnostic Codes 5256, 5258, 5257, 5259, 5260, 5262, or 5263. 2. Status Post Total Left Knee Replacement Rating from August 1, 2019 After reviewing the evidence of record, lay and medical, the Board finds that for the rating period on appeal, from August 1, 2019, the status post total left knee replacement manifested in pain, effusion, limitation of flexion, and shin splints to warrant a 30 percent rating, without evidence of chronic residuals consisting of severe painful motion or weakness in the left knee. The Veteran submitted to a January 2021 VA examination. The Veteran reported intermittent sharp pain, that occurs every day on the medial aspect of the patella, and daily effusion. The VA examiner noted daily effusion, limitation of flexion measured at 100 degrees, and shin splints. The VA examiner also noted that the Veteran occasionally used a cane. The VA examiner did not find ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. The VA and private treatment records pertaining to this short period on appeal do not indicate that the Veteran experienced chronic residuals of the left total knee replacement consisting of painful motion or weakness in the left knee, as contemplated by the higher 60 percent rating. Based on the foregoing, the preponderance of the evidence is against the claim for a higher initial rating in excess of 30 percent for the status post total left knee replacement from August 1, 2019; thus, the claim must be denied. REASONS FOR REMAND 1. TDIU from October 1, 2011 is remanded. During the course of the appeal, the Veteran generally asserted that the service connected left knee disability has rendered him unable to maintain employment. See January 2013 VA Form 21-8940 (TDIU Claim). The Veteran claims that he is unemployable due to the service-connected knee disability and multiple non-service-connected disorders, including bipolar disorder, dental condition, hypertension, lumbar spine disorder, psychiatric disorders, and sleep apnea. For the rating period on appeal from October 1, 2011, the Veteran is service connected for the left knee rated at 10 percent from June 2, 2011 under DC 5260, increased to 100 percent from June 18, 2018 for convalescence, and 30 percent from August 1, 2019 rated at 30 percent under DC 5055. According to the January 2013 Veteran’s application for increased compensation based on unemployability (VA Form 21-8940), the Veteran claimed that he became too disabled to work on October 1, 2011. The Veteran reported that he provided cleaning service from 2008 to 2011 and worked in farm production from July 2011 to October 2011. The Veteran reported that he graduated from high school. The Veteran also checked the box that he has not tried to obtain employment since he became too disabled to work. Multiple VA examinations indicate that the left knee disability affected the Veteran’s ability to maintain employment. In the January 2012 VA examination, the VA examiner noted that the left knee affects the Veteran’s ability to work. The March 2013 VA examination documented that the left knee disability prevented the Veteran from walking more than 100 yards or standing more than 30 minutes. The March 2016 VA examination documented that the left knee caused pain with standing and walking and gives way when climbing steps. In the December 2016 VA examination, the VA examiner noted that the Veteran stopped working with a cleaning service because of the left knee problems. The January 2021 VA examination indicated that the left knee impacted the Veteran’s ability to work in that it manifested in an inability to walk, stand, kneel, lift objects, and carry things. Considering the above evidence, the Board finds remand to obtain an opinion from a vocational or similar occupational specialist to be warranted. The issue of entitlement to a TDIU is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the left knee. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s left knee, not already of record, for the period from June 2020. 3. Ask a VA vocational or similar occupational specialist to evaluate the effect of the service connected left knee disability on the Veteran’s employability (the ability to obtain or maintain substantially gainful employment). Specifically, the specialist is directed to assess the extent of functional and industrial impairment resulting from the service-connected left knee. The Veteran should be advised that failure to participate in the occupational evaluation may result in a denial of benefits. The opinion should address whether the service connected left knee alone is so disabling as to render the Veteran unable to perform any level of work, and/or is so disabling as to prevent training for positions at which the Veteran could work. A medical, educational, and employment history should be taken. If the Veteran fails to provide the requested history, the specialist should provide the requested opinion based upon the available evidence of record. The Veteran’s age and the effects of non service connected disabilities cannot be factors for consideration in making the determination; however, the effects of treatments and medications used to treat the service-connected disability should be considered in the opinion. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided (Continued on the next page)   4. Then, readjudicate the issue of entitlement to a TDIU. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.