Citation Nr: 21024244 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-23 022 DATE: April 22, 2021 ORDER Prior to May 28, 2013, entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is denied. From July 1, 2014, entitlement to a disability rating in excess of 30 percent for residuals of a right total knee replacement is denied FINDINGS OF FACT 1. Prior to May 28, 2013, the Veteran’s service-connected DJD of the right knee did not manifest as compensable limitations of flexion or extension, recurrent subluxation or lateral instability, dislocated or symptomatic post-removal semilunar cartilage, genu recurvatum, or malunion of tibia or fibula, and is not shown to have been ankylosed. 2. From July 1, 2014, the Veteran’s service-connected residuals of a right total knee replacement do not manifest as any intermediate degrees of residual weakness, pain or limitation of motion or chronic residuals consisting of severe painful motion or weakness in the right knee. CONCLUSIONS OF LAW 1. Prior to May 28, 2013, the criteria for a rating in excess of 10 percent for DJD of the right knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5056-63. 2. From July 1, 2014, the criteria for a rating in excess of 30 percent for residuals of a right total knee replacement have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1972 to December 1979 and in the Army Reserves from January 1991 to March 1991. In addition, the Veteran served in the Army Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Initial Consideration The Board remanded this case in November 2018 and April 2020. In the former remand, the Board requested an examination to determine the clinical severity of the Veteran’s right knee DJD. In the latter remand the Board directed the RO to obtain an update from the Veteran’s surgeon to ascertain whether the Veteran is cleared for range of motion testing. (A February notation in the claims file stipulates that a clinician could not conduct a complete VA right knee examination because the Veteran’s surgeon had not issued a clearance for range of motion testing). Upon the surgeon’s clearance, the Board again directed a complete VA right knee examination. To effectuate the surgeon’s clearance, the RO sent release forms (to obtain the private surgeon’s clearance) for the Veteran to sign in April 2020 and May 2020. To date, the Veteran has not returned a signed release form, which thwarts the possibility of conducting an examination to ascertain the current severity of residuals of a right total knee replacement. Applicants for benefits, such as the Veteran, are obligated to cooperate and assist VA in developing evidence. See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). Consequently, the Board proceeds with adjudication of these claims based upon the extant evidence of record and additional VA examinations are not in order. Increased Disability Ratings The Veteran asserts that the disability rating assigned to service-connected right DJD and residuals of a right knee replacement do not contemplate that severity of his symptoms during the time frames enunciated above. By way of explanation to the time frames under consideration, the Veteran was awarded a 100 percent disability rating for a right total knee arthroplasty, effective from May 28, 2013 to June 30, 2014. Thus, the period immediately before the arthroplasty and the period immediately after the arthroplasty one-year recovery period are before the Board. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202, 206-8 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Right Knee DJD Disabilities of the knee and leg are generally rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. Prior to May 28, 2013, the RO rated this disability under Diagnostic Code 5003 and subsequent to May 28, 2013, the RO has rated the disability under Diagnostic Code 5055. Diagnostic Code 5003 (degenerative arthritis) evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. Id. Prior to February 7, 2021, under Diagnostic Code 5257 for recurrent subluxation or lateral instability, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating is warranted for medical evidence showing that the recurrent subluxation or lateral instability can be characterized as moderate; and a 30 percent rating is warranted for recurrent subluxation or lateral instability which medical evidence discloses can be characterized as severe. The rating criteria pertaining to Diagnostic Code 5257 were revised effective February 7, 2021. A 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; and a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Under Diagnostic Code 5260 for limitation of flexion, a noncompensable rating is assigned for flexion limited to 60 degrees; a 10 percent rating is assigned for flexion limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees; and a 30 percent rating is assigned for flexion is limited to 15 degrees. Under Diagnostic Code 5261 for limitation of extension, a noncompensable rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 20 degrees; a 30 percent rating is assigned for extension is limited to 20 degrees; a 40 percent rating is assigned for extension is limited to 30 degrees; and a 50 percent rating is assigned for extension is limited to 15 degrees. Separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5256 pertains to ratings for ankylosis of a knee. Diagnostic Code 5262 applies to ratings for impairment of the tibia and fibula. Diagnostic Code 5258 applies to a dislocated semilunar cartilage. Diagnostic Code 5259 applies to removal of the semilunar cartilage. Diagnostic Code 5263 applies to rating genu recurvatum. The rating criteria pertaining to Diagnostic Code 5262 were revised effective February 7, 2021. However, as those Codes are not applicable in this matter, and the February 7, 2021 effective revision does not require further discussion. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that under 38 C.F.R. § 4.71, a separate evaluation may be assigned for meniscal problems under Diagnostic Codes 5258 or 5259, even when ratings are in effect under Diagnostic Codes 5257 and 5261. The Board must also consider functional impairment with respect to the baseline range of motion (ROM) noted during clinical evaluation. English v. Wilkie, 30 Vet. App. 347 (2018) (the Board must adequately explain how it considered functional loss due to pain, including during flare-ups). Diagnostic Code 5055 pertains to prosthetic replacement of a knee joint. Upon such, 100 percent rating is in effect for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. The rating criteria pertaining to Diagnostic Code 5055 was revised effective February 7, 2021. A 100 percent rating is in effect for 4 months following implantation of prosthesis or resurfacing. Then, 60 percent rating is for application when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, rating is by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum evaluation for residuals of a total replacement is 30 percent. Prior to May 28, 2013 Dr. M.’s private treatment records disclose that the Veteran complained of right knee discomfort as early as 1994. Dr. M. indicated that presence of right knee degenerative changes, nothing that the Veteran underwent arthroscopic surgery in March 1994. Dr. M. also indicated that the Veteran has chondromalacia of the right patella. A two-page chiropractic record of unknown authorship, provenance, or date (associated with the claims file in July 2005) shows that the Veteran endorsed knee pain and a degenerative knee. A notation also indicates a diagnosis “knee pain DJD”. Interpreting an October 1999 x-ray of the right knee, a VA staff radiologist rendered an impression of right knee mild degenerative changes, particularly in the medial compartment. This radiologist further indicated that the right knee medial compartment appeared narrow. A review of the private medical treatment records of Dr. J., a private physician, show that the Veteran sought treatment for his right knee DJD from 1998 through 2004 (as elaborated upon below). Throughout this course of treatment. Dr. J. did not change the Veteran’s diagnosis. From as early as 1998, the Veteran received courses of Synvisc injections. Upon review of September 2003 x-ray imaging, Dr. J. indicated that weight-bearing radiographs of the right knee show collapse of the medial compartment and early-to-mild degenerative changes to the patellofemoral joint. In two treatment records of June 2004, Dr. J. indicated the Veteran returned for another round of right knee Synvisc injections. At the time of the second injection, the right knee evinced a little swelling and tenderness primarily at the medial aspect. The Veteran had extension to 120 degrees. At the time of third injection, Dr. J. reported that the Veteran had made a lot of improvement since his second injection—to the extent that he is pain-free at times. Dr. J. noted a diagnosis of right knee DJD and he reported range of motion to 125 degrees without swelling or tenderness at this time. The Veteran failed for report for a VA examination in September 2005. A review of the record shows that the Veteran explained the situations surrounding his failure to report. Upon a January 2006 VA joints examination, a clinician wrote that the Veteran endorsed progressive knee pain. The Veteran indicated that he experienced increased pain with repetitive motion, such as walking and driving for extended periods. The Veteran did not report flare-ups. The clinician indicated that an October 1999 x-ray showed degenerative changes in the right knee medial compartment with narrowing of the medial compartment. The Veteran commanded 110 degrees of flexion without pain and zero degrees of extension without pain. The clinician reported some mild joint line tenderness and mild crepitation. However, the Veteran’s cruciate and collateral ligaments were intact. This clinician provided impressions of meniscal injury to the right knee and degenerative arthritis of the right knee. In a November 2006, Dr. E., a private physician, wrote that he had injected two ccs. of Hyalgan into the Veteran’s right knee. In April 2006, Dr. E. indicated that x-ray imaging revealed a bone-on-bone finding medially at the right knee. At this time, Dr. E. provided an assessment of severe DJD of the right knee secondary to osteoarthritis. Interpreting an April 2006 x-ray imaging report, Dr. C. found that osteophytes were present in all three compartments of the right knee. Dr. C. provided an assessment of osteoarthritis of the right knee, severe. In a December 2008 VA treatment record, a clinician reported that the Veteran sought treatment for right knee pain. The clinician indicated that the Veteran was not anxious to pursue surgical intervention. There was evidence of tenderness to the medical joint line. The Veteran commanded flexion to 110 degrees and extension to zero degrees. The clinician noted that the right knee was stable to varus and valgus stress. There were firm endpoints upon anterior and posterior drawer testing. X-ray imaging revealed tricompartmental DJD with impressive varus malalignment and collapsed medical compartment. In a September 2009 record, a clinician indicated that the Veteran commanded “approximately” 110 degrees in flexion (a goniometer was not used). The clinician reported that the Veteran was active and Kenalog injections provided “excellent” relief. In a December 2009 record, a clinician opined that the Veteran commanded flexion to “probably” 95 degrees (a goniometer was not used). The clinician indicated that the Veteran endorsed much pain upon this “arch of motion”. There was no evidence of tenderness or instability with varus or valgus stressing. In a June 2010 record, a clinician indicated that the Veteran commanded “approximately” 110 degrees in flexion (a goniometer was not used). This clinician indicated that x-ray imaging showed tricompartmental DJD with medial joint compartment and bone-on-bone. An April 2011 individual sick slip shows that the Veteran sought treatment for right knee pain and swelling. The Veteran conveyed that he experienced this pain when walking or traversing stairways. A clinician indicated an acute or chronic knee injury, to be treated with icing and medication. The clinician also recommended that the Veteran not lift objects over 25 pounds for two weeks as well as curtailment of dismount duties for two weeks. In May 2012, the Veteran reported for a VA knee conditions examination. As to the right knee, the Veteran endorsed flare-ups, manifesting as sharp medial pain. The Veteran conveyed that long periods of walking and standing aggravated flare-ups. The Veteran commanded flexion to 90 degrees with pain and extension to zero degrees without pain. Repetitive use testing resulted in no additional limitation in range of motion. The clinician indicated that the Veteran had functional loss that included pain on movement. There was no evidence of pain upon palpation to the soft tissues of the right knee joint line or soft tissues. The Veteran retained 5/5 (normal) right knee strength. The clinician indicated that the Veteran did not have joint instability, recurrent patellar subluxation/dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, a meniscal condition, or any other tibial and/or fibular impairment. The clinician did not indicate that this disability functionally impacted the Veteran’s ability to work. Associated x-ray imaging disclosed severe arthritic changes to the right knee, 2012 private treatment records from another Dr. M., a private physician, disclose that the Veteran sought treatment and consultation for his right knee. Dr. M. indicated that the Veteran endorsed constant, aching, dull right knee pain of moderate severity that was increasing. Dr. M. also provided right knee injections. Clinically, this Dr. M. indicated decreased passive range of motion and decreased active range of motion. In his May 2013 notice of disagreement (NOD), the Veteran stated that his right knee DJD was much greater in severity than that recognized by a 10 percent rating. Courses of steroid injections no longer assuaged right knee pain. He indicated that Dr. M. has submitted authorization to Tricare for a right knee replacement. That procedure would take place on May 28, 2013. The Veteran believes that his right knee DJD was more severe than that contemplated by a 10 percent rating prior to May 28, 2013. The Board finds the Veteran’s statements are credible. Indeed, the Veteran is competent to report that which is discernable, such as right knee pain. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran lacks the medical knowledge and orthopedic expertise to assess the clinical severity of right knee DJD. See 38 C.F.R. § 3.159(a)(1). As such, this lay evidence does not constitute competent medical evidence. Prior to May 28, 2013, a 10 percent rating under Diagnostic Code 5003 is assigned for the Veteran’s right knee pain, and it is the maximum rating available for pain without a showing of compensable functional limitations. The pertinent evidence is summarized above. The Board finds the medical evidence of record is entitled to probative weight. No examination during the evaluation period found limitations of flexion or extension that would be compensable under Diagnostic Codes 5260 or 5261 criteria. Consequently, a rating in excess of 10 percent under those Diagnostic Codes is not warranted. Likewise, no examination or treatment records found evidence of ankylosis, subluxation or instability, genu recurvatum, tibia or fibula impairment, or dislocated or symptomatic post-removal semilunar cartilage. Consequently, separate compensable ratings under Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, or 5263 are not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45; see also DeLuca, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the minimal compensable rating for the right knee is already assigned, and the analysis must hinge on whether functional loss warranting a higher than 10 percent rating is reasonably shown. The May 2012 clinician did indicate that pain on movement contributed to functional loss. However, the clinician did not report that pain, weakness, and incoordination caused functional loss with repetitive use over a period of time and during flare-ups. The private medical evidence of record likewise fails to disclose functional limitations which warrant compensable ratings during the period under consideration. Hence, an increased rating based on functional limitations due these factors is not warranted. While the Veteran has been shown to experience right knee pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but of itself does not constitute functional loss. Saunders, 886 F. 3d 1356. The Board does not question that the Veteran’s right knee DJD did result in functional limitations that the Veteran endorsed (walking and driving for prolonged periods as well as traversing stairways). These limitations are contemplated by the criteria for the 10 percent rating that is assigned. The Board also finds that the right knee symptoms and impairment shown do not include any that are not adequately addressed by the schedular rating criteria. The Board has thoroughly considered the updated Diagnostic Code that went into effect February 7, 2021, and whether an increased rating for the Veteran’s right knee was warranted however finds that such as not applicable. In sum, the Board finds that the preponderance of the evidence is against the claim for a rating higher than 10 percent prior to May 28, 2013. From July 1, 2014 As of July 1, 2014, the RO rated the Veteran’s service-connected residuals of a total right knee replacement at 30 percent under Diagnostic Code 5055. In an October 2015 VA treatment record, a clinician indicated that the Veteran’s status post total right knee replacement was stable. The record shows that the Veteran failed to report to VA examination scheduled for October 2019 and declined to undergo a VA examination in November 2019. Upon a February 2020 VA examination, a clinician indicated that the Veteran has not been cleared by his surgeon to undergo right knee range of motion testing. The clinician noted that the Veteran conveyed that he would report for a VA examination once he gets “cleared” by his orthopedic surgeon to assess range of motion. At this time, the Veteran told the clinician that he was experiencing significant pain and could not sleep. Nevertheless, the clinician provided no clinical findings whatsoever. In an October 2020 brief, the Veteran’s representative articulated that the mere fact that the Veteran was not “cleared” for range of motion testing itself is indicative of severity of the Veteran’s residuals of a total right knee replacement that would support a 60 percent rating. The representative did not address the forms (surgeon releases) sent to the Veteran in April 2020 and May 2020 that have received no response. Thus, Veteran’s representative’s October 2020 contentions are somewhat disingenuous as they ignore the fact that the Veteran never executed medical releases in order to proceed to necessary range of motion testing. The Board notes that the representative is not a competent authority to determine what information may be found probative to a competent examiner. The Board has considered the Veteran’s and his representative contentions however, VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran’s representative is not competent to provide a medical opinion. Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. As noted above, in its prior iteration and in its iteration as of February 7, 2021, Diagnostic Code 5055 stipulates that chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. And, the minimum rating following replacement of a knee joint is 30 percent. The Veteran (and his representative) insist that the Veteran’s residuals of a right knee replacement warrant a 60 percent disability. As already noted, the Veteran is competent to report that which is discernable, such as right knee pain. See Jandreau, F. 3d 1372. However, the Veteran lacks the medical knowledge and orthopedic expertise to assess the clinical severity of a residuals of a total right knee replacement. See 38 C.F.R. § 3.159(a)(1). As such, this lay evidence does not constitute competent medical evidence. Here, the Board notes that neither the Veteran nor his representative have produced any competent evidence to support the lay contention concerning the clinical severity of these residuals. Here, the Board notes that the Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). As to the Veteran’s representative’s contentions as discussed in the October 2020 concerning an “imputation” of severity, the Board finds that this argument fails to address the fact that a medical assessment of this severity did not take place by the Veteran’s failure to execute the releases discussed above. The United States Court of Appeals for Veterans Claims (Court) has stated that the duty to assist is not a one-way street. If a veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence, it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). As such the Board finds that the weight of evidence is against finding that the Veteran’s extant residuals are chronic residuals consisting of severe painful motion or weakness of the right knee replacement, which would warrant a 60 percent rating under Diagnostic Code 5055. Consequently, the Board finds that the preponderance of the evidence is against the claim for a rating higher than 30 percent for residuals of a total right knee replacement. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.