Citation Nr: 21024688 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 20-0114 DATE: April 23, 2021 ORDER Entitlement to a disability rating in excess of 30 percent from March 1, 2016 to May 17, 2019, for a left knee disability is denied. Entitlement to a disability rating of 60 percent, but no higher, from May 17, 2019 for a left knee disability is granted. REMANDED Entitlement to service connection for right lower extremity neuropathy to include as due to a service-connected right knee disability, is remanded. Entitlement to service connection for left lower extremity neuropathy to include as due to a service-connected left knee disability, is remanded. FINDINGS OF FACT 1. From March 1, 2016 to May 17, 2019 the Veteran’s left knee disability did not result in chronic residuals consisting of severe painful motion or weakness. 2. From May 17, 2019 the Veteran’s left knee disability resulted in chronic residuals consisting of severe painful motion or weakness. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for a left knee disability from March 1, 2016 to May 17, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5055. 2. The criteria for a disability rating of 60 percent, but no higher, for a left knee disability from May 17, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1982 to July 1992, December 2001 to October 2002, February 2003 to August 2003, and from January 2010 to August 2010. This appeal is before the Board of Veterans’ Appeals (Board) from multiple rating decisions from Department of Veterans Affairs (VA) Regional Offices (RO). This case is being reviewed according to the appellate process set forth under the Appeals Modernization Act (AMA). 84 Fed. Reg. 138, 169 (Jan. 18, 2019); 38 C.F.R. § 19.2. The procedural history for these claims is as follows: In a November 2013 rating decision the RO granted the Veteran a 30 percent disability rating for his left knee disability from December 1, 2013 and the Veteran subsequently appealed. In an October 2015 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for left and right lower extremity neuropathy and the Veteran subsequently appealed. In March 2018, the Veteran elected the modernized review system and placed his appeals under a supplemental claim, seeking readjudication of the above-mentioned matters after the submission of new evidence. In May 2019, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge and a transcript is associated with the claims file. In a June 2020 Board decision, the Board remanded the Veteran’s claim for a disability rating in excess of 30 percent for his left knee disability from May 1, 2016 and denied his claims of service connection for left and right lower extremity neuropathy. However, the Veteran appealed his neuropathy claims to the U.S. Court of Appeals for Veteran’s Claims (CAVC) and in September 2020, a Joint Motion for Partial Remand (JMPR) was issued after finding the Board erred in denying the Veteran’s neuropathy claims. Specifically, the JMPR determined the Board did not address the Veteran’s contentions of an alleged inadequate medical examination. In addition to this development, in September 2020 the RO issued a supplemental statement of the case (SSOC), which denied the Veteran a disability rating in excess of 30 percent for a left knee disability after March 1, 2016. The Veteran’s increased rating claim for his left knee disability and his service connection claims have returned to the Board and remain within the AMA system. Lastly, the Board finds compliance with the June 2020 Remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rating a disability of the musculoskeletal system, a number of factors are considered. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Veteran’s left knee disability is currently rated under Diagnostic Code 5055. Pursuant to Diagnostic Code 5055, a 100 percent evaluation is assigned for one year following implantation of a knee prosthesis for a service-connected knee disability. After this period has ended, a 60 percent disability rating is warranted when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to Diagnostic Codes 5256, 5261, and 5262. The minimum evaluation for knee replacement with prosthesis is 30 percent. 38 C.F.R. § 4.71a. Under Diagnostic Code 5256, ankylosis of the knee with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, is rated at 30 percent; ankylosis in flexion between 10 and 20 degrees is rated at 40 percent; ankylosis in flexion between 20 and 45 degrees is rated at 50 percent; and extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated at 60 percent. The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, limitation of flexion warrants a 30 percent evaluation when limitation is to 15 degrees. Under Diagnostic Code 5261, limitation of extension warrants 40 and 50 percent evaluations when limitation is to 30 degrees and 45 degrees, respectively. The words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. It should also be noted that use of terminology such as “slight” and “moderate” by physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 1. Left Knee from March 1, 2016 to May 17, 2019 During this period of time, the Veteran’s left knee disability is rated at 30 percent disabling under Diagnostic Code 5055. A 60 percent disability rating is warranted when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to Diagnostic Codes 5256, 5261, and 5262. See 38 C.F.R. § 4.71a. Turning to the evidence of record, a private treatment record from January 2016 indicates the Veteran reported daily “low level pain” with “swelling [occurring] daily, depending on his activity level.” The record also indicates his active range of motion was “105 degrees of flexion” and full extension; his passive range of motion was “110 degrees of flexion” and full extension; with pain upon palpitation over the MCL. A June 2016 private treatment record indicates he reported, “continued, constant pain at 4-5/10 in his left knee” and “low level pain daily. Pain increases as he is on his knee for prolonged periods of time.” He also subjectively reported left knee swelling that improves with medication. The record also indicates his active and passive ranges of motion were “100 degrees of flexion” and full extension with pain upon palpitation over the MCL and the “medial hamstring tendons posteriorly.” A December 2017 private treatment record indicates he reported “his left knee is doing well, and he has no concerns.” He also reported swelling to his knee that improves with medication. The record also indicates his active and passive ranges of motion were “100 degrees of flexion” and full extension with no pain upon palpitation over the medial or lateral joint line. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran’s left knee disability warrants a disability rating in excess of 30 percent from March 1, 2016 to May 17, 2019. Diagnostic Code 5055 permits the award of an evaluation up to 60 percent after the one-year period following implantation of a knee prosthesis when there are chronic residuals consisting of severe painful motion or weakness. See 38 C.F.R. § 4.71a. Here, the evidence of record is devoid of any competent or credible medical evidence indicating the Veteran’s left knee disability consisted of severe painful motion or weakness. Although there were reports of pain, the record does not indicate his pain manifested as “severe,” and his level of pain is contemplated by this periods 30 percent rating. Additionally, the evidence of record does not indicate the Veteran’s left knee disability manifested as extremely unfavorable ankylosis of the knee limiting flexion between 10 and 45 degrees or more (Diagnostic Code 5256), left knee extension limited to 30 or 45 degrees (Diagnostic Code 5261), or nonunion of the tibia or fibula (Diagnostic Code 5262). Indeed, the evidence of record does not indicate that at any point during this period of time the Veteran’s left knee disability manifested at a rating in excess of 30 percent under any of the previously mentioned and applicable Diagnostic Codes. The Board also considered whether his left knee disability warranted a higher rating due to pain, weakness, incoordination, or fatigability. See DeLuca, 8 Vet. App. at 204-07. However, the evidence of record does not indicate that such symptoms resulted in the functional equivalent of the symptoms contemplated by the increased ratings under the previously mentioned Diagnostic Codes. As such, and absent evidence to the contrary, the Board finds his left knee disability does not warrant an increased rating under Diagnostic Codes 5055, 5256, 5261, and 5262 under DeLuca. In sum, from March 1, 2016 to May 17, 2019, the preponderance of the evidence is against finding the Veteran’s left knee disability warrants a disability rating in excess of 30 percent. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. To the extent that a higher rating is sought, the preponderance of the evidence is against the claim and the benefit of the doubt rule would not apply. Id. As such, the Veteran’s claim for a disability rating in excess of 30 percent for a left knee disability from March 1, 2016 to May 17, 2019, is denied. 2. Left Knee from May 17, 2019 As previously stated, a maximum 60 percent disability rating is warranted when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to Diagnostic Codes 5256, 5261, and 5262. See 38 C.F.R. § 4.71a. Turning to the evidence of record, during his May 17, 2019 Board hearing the Veteran reported the following subjective symptoms: lack of full range of motion, difficulty going up and down stairs, difficulty bending at the knee, can no longer run or jog, requires aid to assist himself to stand up if on the ground, and pain that is sometimes “unbearable.” In September 2020, the Veteran underwent a VA knee and lower leg conditions examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The Veteran subjectively reported the following: (1) “constant dull aching pain with stiffness and swelling, episodes of increased swelling causing further decreased range of motion.”; (2) functional loss described as difficulty going up and down stairs without compensating, difficulty sitting or standing for prolonged periods, and unable to knee or squat; and (3) flare-ups described as occurring 1-6 times a month that last several hours for 1-2 days with moderate to severe pain involving his knees swelling to “more than half its normal swelling size.” The report determined his flexion was 5 to 60 degrees and his extension was 60 to 5 degrees, both with pain that caused functional loss. The report noted moderate generalized tenderness with palpable edema and crepitus but no evidence of pain with weight bearing. He was not examined immediately after repetitive use over time and the examination was medically consistent with the Veteran’s statements, and pain, weakness, fatiguability, and incoordination did not limit any functional ability. He was not examined during a flare-up and the results were consistent with his statements, and pain, weakness, fatiguability, and incoordination did not limit any functional ability. The report determined he experienced reduced muscle strength measured as flexion 4/5 and extension 3/5 but he was negative for muscular atrophy and ankylosis. The report also determined he had a history of moderate recurrent subluxation, lateral instability, and recurrent effusion described as “palpable on exam, chronic.” The report noted joint instability described as follows: anterior instability 1+, posterior instability 1+, medial instability 1+, and lateral instability 1+. The report determined he did not suffer from shin splints, stress fractures, genu recurvatum or meniscal conditions. The report also noted he regularly uses a left knee brace due to his left knee disability. Under the surgical procedures section, the examiner noted his 2013 and 2016 surgical procedures and determined he suffered from chronic residuals consisting of severe painful motion or weakness and chronic joint effusion, decreased flexion and extension, chronic pain, weakness, and instability. A Correia test determined he had objective evidence of pain on passive range of motion testing and when the joint is used in non-weight bearing. Lastly, in the comments section the examiner wrote, “Veteran’s [service connected] left knee arthroplasty with residuals has worsened and he has chronic instability.” After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the evidence of record indicates the Veteran’s left knee disability warrants a disability rating of 60 percent, but no higher, from May 17, 2019. Here, during is May 2019 VA Board hearing the Veteran alleged that his left knee disability had worsened citing to pain that can be “unbearable.” Moreover, his allegations of worsening were confirmed by the September 2020 VA examination report which noted constant daily pain, moderate to severe flare-ups lasting up to two days, noted decreased flexion and extension, severe painful motion or weakness, and the examiner even commented his disability had “worsened.” Additionally, it is reasonable to assume the Veteran’s left knee did not manifest as severe painful motion or weakness only during the September 2020 VA examination but also existed at the time of his May 2019 Board hearing. As such, the Board will afford all reasonable doubt to the Veteran in finding his left knee disability manifested as chronic residuals consisting of severe painful motion or weakness from May 17, 2019 and therefore grant a 60 percent rating from that date as it is the earliest point the evidence of record indicates his left knee disability had worsened. The Board also points out that 60 percent is the maximum rating permitted under Diagnostic Code 5055 outside of the one-year period immediately following the implantation of a knee prosthesis. Since there is nothing to show that the Veteran underwent an additional left knee replacement surgery since May 17, 2019, the Board determines that a 100 percent evaluation is not warranted for this period. In sum, after granting all reasonable doubt to the Veteran, the Board finds the Veteran’s left knee disability warrants a disability rating of 60 percent, but no higher, from May 17, 2019. Hence the benefit of the doubt rule applies. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. As such, the Veteran’s claim for a disability rating of 60 percent, but no higher, for a left knee disability from May 17, 2019, is granted. REASONS FOR REMAND 1. Right Lower Extremity Neuropathy 2. Left Lower Extremity Neuropathy The Veteran seeks entitlement to service connection for right and left lower extremity neuropathy and in the alternative alleges his neuropathy is the result of his service-connected right and left knee disabilities. Turning to the evidence of record, the service treatment records do not include any treatment for, or complaints related to neuropathy or symptoms attributable to this condition. The first mention of neuropathy is in a September 2012 private treatment record indicating he was diagnosed with “sensory and motor peripheral neuropathy.” An October 1, 2012 private record indicates he experienced “70% loss of sensation in his feet.” The record also states the following: “Proceed with left knee replacement with precautions for peripheral neuropathy.” An October 9, 2012 private record indicates he underwent a left knee arthroscopy. An October 10, 2012 private record indicates “testing did not reveal features of sensory and motor polyneuropathy more than would be expected based on age.” A November 2012 private treatment record indicates he had sensorimotor peripheral polyneuropathy and the physician determined, “I found no reversible treatable etiology for his neuropathy.” Private medical records in November 2013 noted “sensorimotor peripheral polyneuropathy” and in February 2014 noted bilateral lower extremity neuropathy. In December 2014, the Veteran’s private physician, Dr. G.S. noted the Veteran had a diagnosis of bilateral lower extremity neuropathy; however, the physician did not provide a nexus opinion. In January 2015, he underwent a left knee arthroplasty at a private facility. A February 2015 private treatment record states the following, “Vet is known to have peripheral neuropathy, but Dr. G.S. states that his knee surgeries did not result in any neurological consequences.” In November 2015 the Veteran underwent a VA peripheral nerves conditions examination report which included a review of the claims file, a recitation of complaints and medical history, and examination results. The examination report indicates he experienced the following peripheral nerve symptoms: moderate numbness and paresthesias and/or dysesthesias in both lower extremities. There was also decreased sensation in the feet and lower legs. The report determined he had mild incomplete paralysis of the right and left sciatic nerves, right and left musculocutaneous nerves, right and left anterior tibial nerves, right and left posterior tibial nerves, and right and left anterior crural nerves. The report also noted his gait was normal and he did not use any assistive devices. Based on these findings, the examiner concluded that the Veteran’s neuropathy of the bilateral lower extremities was less likely than not related to either of his service-connected knee impairments. The examiner explained that since the Veteran’s neuropathy was diffuse and symmetrical throughout his extremities, it could not have been caused by a damaged nerve at the knee level. A December 2017 private treatment record from a Dr. K.S. states, “It is my estimation that [his bilateral neuropathy] is definitely related to his military service.” During his May 2019 Board hearing, the Veteran alleged that during the November 2015 VA examination, a “student from Wayne State University” performed the test and alleged the following: I don’t know if she was an intern or what, but the other doctor came in and was very upset with her because she wasn’t doing it right. She was causing me pain that I didn’t need to be caused to me because she was poking me multiple times. And they’re saying that the results that my civilian doctor came up with is different than their results. So, I think, when I went there that time and that student was administering the test, it wasn’t done right. In October 2019, the Board denied the Veteran’s claims; however, in September 2020, a JMPR was issued by CAVC that vacated the Board’s Decision. The JMPR ordered the Board to do the following: The Board must identify [who] conducted the testing during the November 2015 examination, specifically addressing Appellant’s claim that a student/intern conducted the test, and determine whether Appellant has raised a valid objection to the competency or qualifications of the examiner. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds there is insufficient competent evidence of record for VA to make a decision. The Board must follow the parties' instructions contained in the September 2020 Joint Motion for Partial Remand. In this vein, a JMPR, when drafted properly, identifies clear instructions to the Board as to what it is required to address, and what actions it is required to take, on remand. Carter v. Shinseki, 26 Vet. App. 534, 541 (2014). Here, the JMPR ordered the Board to determine who conducted the November 2015 VA examination. However, the Board finds that to attempt to determine who conducted a single VA examination over six years ago is unlikely to bear fruit and any attempt to do so would be futile. The Board further finds that without determining the qualifications of the examiner or even who conducted the examination, the Board cannot rely on the results and opinion of the November 2015 VA examination. As such, the November 2015 VA examination is inadequate for VA ratings purposes. Accordingly, the Board finds the RO committed a pre-decisional duty to assist error by relying on an inadequate medical examination in denying the Veteran’s claim. Therefore, the case must be remanded, and the Veteran must be afforded a new VA examination to determine the nature and etiology of his bilateral lower extremity neuropathy. These matters are remanded for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any diagnosed right and left lower extremity neuropathy. The examiner is directed to review the evidence outlined above in answering the following questions: (a.) Whether it is at least as likely as not (a 50 percent probability or greater), the Veteran’s right and/or left lower extremity neuropathy was incurred in or the result of active duty service? (b.) If the answer to (a.) above is negative for the right knee, whether it is at least as likely as not (a 50 percent probability or greater), the Veteran’s right lower extremity neuropathy is proximately due to, the result of, or aggravated by (chronically worsened beyond the natural progress of the disease) the service-connected right knee chondromalacia? (c.) If the answer to (a.) above is negative for the left knee, whether it is at least as likely as not (a 50 percent probability or greater), the Veteran’s left lower extremity neuropathy is proximately due to, the result of, or aggravated by (chronically worsened beyond the natural progress of the disease) the service-connected left knee arthoplasty? Note: All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, she shall provide complete explanations stating why this is so. 2. After the above is completed, readjudicate the Veteran’s claims. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.