Citation Nr: 21024035 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-33 339A DATE: April 21, 2021 ORDER Entitlement to service connection for degenerative arthritis of the right knee is granted. Entitlement to service connection for degenerative arthritis of the left knee is granted. Entitlement to an evaluation in excess of 50 percent for status post total left hip replacement, from May 1, 2016, is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for left knee strain with chondromalacia (excluding periods of temporary total rating) is remanded. Entitlement to a separate compensable rating for left knee instability is remanded. FINDINGS OF FACT 1. Service connection is in effect for degenerative arthritis for the lumbar spine as contemplated in 38 C.F.R. § 4.71a, Diagnostic Code 5003, a chronic disease. 2. Right knee degenerative arthritis is a subsequent manifestation of already service-connected 5003 type arthritis. 3. Left knee degenerative arthritis is a subsequent manifestation of already service-connected 5003 type arthritis. 4. From May 1, 2016, status post total left hip replacement is manifested by moderately severe residuals of weakness, pain, or limitation of motion; residuals are not shown to be markedly severe and the need for crutches has not been shown. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for left knee degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. From May 1, 2016, the criteria for an evaluation in excess of 50 percent for status post total left hip replacement have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5054. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1973 to November 1975. These matters were remanded by the Board in January 2019 and August 2020 for procedural reasons and evidentiary development, respectively. 1. Entitlement to service connection for degenerative arthritis of the right knee 2. Entitlement to service connection for degenerative arthritis of the left knee Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). The AOJ has classified the service-connected lumbar spine disability under Diagnostic Code 5242. The principles of extending service connection to joints, as contemplated in 38 C.F.R. § 4.71a, Diagnostic Code 5003, also apply even though the Veteran is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5003 contemplates a generalized process and by law and regulation is a chronic disease. We accept that the AOJ intended what was accomplished in the rating decision. Regulation establishes that subsequent manifestations of the same disease process are service connected unless clearly attributable to intercurrent cause. Arthritis is a chronic disease. Here, such intercurrent cause has not been established. VA examination documents degenerative arthritis of the knees upon diagnostic testing, x-ray. We have also considered the guidance contained in the M-21-1. If there was error in assigning Diagnostic Codes such should have been corrected. Here, arthritis of the knees are subsequent manifestations of the already service-connected generalized arthritis (code 5003). Service connection is warranted. 3. Entitlement to an evaluation in excess of 50 percent for status post total left hip replacement, from June 1, 2016, 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. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the current uniform 50 percent evaluation is warranted for the entire period on appeal. The Veteran’s status post total left hip replacement is rated as 50 percent disabling from May 1, 2016. 38 C.F.R. § 4.71a, Diagnostic Code 5054. The 50 percent rating is in effect after a temporary total rating following the left hip replacement. The period on appeal is from May 1, 2016, pursuant to the August 2020 Board decision (the Board decision appears to mistakenly list June 1, 2016, as the date on appeal, but the most recent codesheet indicates that the date is May 1, 2016). 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. Prior to the regulatory change, Diagnostic Code 5054 (hip replacement) warranted a 100 percent evaluation for the one-year period following implantation of the prosthesis. A 90 percent evaluation was warranted if following the implantation there is painful motion or weakness such as to require the use of crutches. A 70 percent evaluation was warranted if there is markedly severe residual weakness, pain, or limitation of motion following implantation of the prosthesis. Chronic residuals consisting of moderately severe weakness, pain or limited motion warranted a 50 percent rating. A minimum 30 percent rating would be assigned following the implantation of the prosthesis. As of February 7, 2021, the Diagnostic Code was changed to limit the period of a 100 percent evaluation following implantation from one year to four months and to specify that the minimum 30 percent evaluation is for total joint replacement only, distinguish total replacement from resurfacing of the joint. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76461 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5054). All other criteria remain the same. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. 38 C.F.R. § 3.100 (a) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present.”). Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In this matter, Diagnostic Code 5054 is the only potentially applicable Diagnostic Code. Copeland v. McDonald, 27 Vet. App. 333 (2015). The changes to the Diagnostic Code, as shown, will not impact the Veteran’s disability as they shorten the period of temporary total evaluation following joint replacement and specify that the minimum 30 percent evaluation is for total joint replacement only. As such, there is sufficient medical evidence to proceed with adjudication and evaluation under the old or new criteria will not impact the outcome. The Board’s August 2020 Remand determined that an October 2016 examination was inadequate for rating purposes as it failed to comply with the Court’s Sharp requirements that the examiner estimate the impact of repeated use over time on functional impairment. Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, it is of minimum probative value. However, some findings are still relevant, including pain on movement in all directions. There was no pain on weight bearing and no objective evidence of crepitus. Muscle strength was 5/5 on flexion, extension, and abduction. There was no muscle atrophy and no indication that crutches were required. When describing the residuals of the total joint replacement, the examiner noted “pain” in the “other” category. The examiner specifically declined documenting the residuals as markedly severe or requiring the use of crutches. Pursuant to the Board’s Remand, the Veteran was afforded a September 2020 examination. The Veteran specifically denied flare-ups. Range of motion was 90 degrees flexion, 20 degrees extension, 40 degrees abduction, and 10 degrees adduction. External rotation was 40 degrees and internal rotation 15 degrees. Range of motion resulted in functional loss in the form of limited squatting and kneeling. Pain was noted on exam in all fields of motion, but it did not result in functional loss. There was not pain on weight bearing and no objective evidence of crepitus. There was objective evidence of localized tenderness or pain on palpation. Repetitive use testing was performed but it did not result in additional limitation of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability after repeated use. Muscle strength was 5/5 on flexion, extension, and abduction. There was no muscle atrophy. When describing the residuals of total joint replacement, the examiner noted “other” detailing “scar, pain, limited motion.” The examiner specifically declined to note markedly severe residuals or the requirement of use of crutches. Functional impact was noted as limitations to prolonged repetitive squatting, kneeling, climbing, and standing. The examiner clarified that range of motion testing was performed both actively and passively. It was performed non-weight bearing. It was not performed while weight-bearing, as this would be “medically inappropriate and is potentially hazardous given the Veteran’s overall debilitation.” After a review of the medical and lay evidence, an evaluation in excess of 50 percent for the Veteran’s left hip is not warranted.   While there is pain and limitation of motion in all directions, the evidence does not show it to be markedly severe. Strength is 5/5 in all directions. Furthermore, there is no additional limitation upon repeated use. The Veteran is able to ambulate and is only limited to “prolonged” repetitive squatting, kneeling, climbing, and standing. Both VA examiners concluded that the Veteran’s disability did not manifest as markedly severe residual weakness, pain, or limitation of motion. While not dispositive, this certainly does not support an evaluation in excess of 50 percent. The Board finds that the Veteran’s symptoms and overall impairment more nearly approximate the criteria for a 50 percent rating for the entire period on appeal. There is no evidence of markedly severe residual weakness, pain, or limitation of motion. Furthermore, there is no evidence that crutches are required for ambulation. In reaching this finding the Board has considered the Veteran’s lay assertions. To the extent these assertions are consistent with a 70 percent evaluation, the Board finds the objective medical testing to be more probative in this instance. The preponderance of the evidence is against an evaluation in excess of 50 percent. The claim must be denied. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for left knee strain with chondromalacia (excluding period of temporary total rating) is remanded. 2. Entitlement to a separate compensable rating for left knee instability is remanded. The grant of service connection for left knee degenerative arthritis expands the issue on appeal, but this expanded disability has not yet been rated. The issue must be remanded so the AOJ can rate the entire disability in the first instance. The matters are REMANDED for the following action: 1. Readjudicate the left knee increased rating claim in light of the grant of service connection for left knee degenerative arthritis. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.