Citation Nr: 21026024 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-00 443A DATE: April 29, 2021 ORDER Prior to October 1, 2015, entitlement to an increased rating in excess of 10 percent for residuals of injury right knee is denied. From December 1, 2016, entitlement to an increased rating in excess of 30 percent for residuals of injury right knee is denied. Entitlement to an increased rating in excess of 10 percent for right knee instability is denied. As new and material evidence has been submitted sufficient to reopen a claim of service connection for a left knee disorder, the Veteran's petition to reopen is granted. REMAND Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. Prior to October 1, 2015, the Veteran had arthritis of the right knee that caused pain and limitation of flexion to 120 degrees, at worst. There was no limitation of extension. 2. From December 1, 2016, his right knee has been manifested by prosthetic replacement of the knee joint with minimal weakness, pain, or limitation of motion. 3. The evidence does not show the Veteran has moderate instability of the right knee during the period on appeal. 4. January 2008 and May 2011 rating decisions denied service connection for a left knee disorder. The Veteran received notice of these decisions and did not appeal or file new and material evidence within one year. 5. The evidence received since the final May 2011 rating decision is new and material and relates to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for a left knee disorder. CONCLUSIONS OF LAW 1. Prior to October 1, 2015, the criteria for entitlement to an increased rating in excess of 10 percent for left patellofemoral pain syndrome with degenerative arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5010-5260, 5261. 2. From December 1, 2016, the criteria for an evaluation in excess of 30 percent for right knee total arthroplasty have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 3. The criteria for an evaluation in excess of 10 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. New and material evidence has been received to reopen the finally denied claim of entitlement to service connection for a left knee disorder and the petition to reopen is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1961 to July 1964. INCREASED RATING 1. Prior to October 1, 2015, entitlement to an increased rating in excess of 10 percent for residuals of injury right knee 2. From December 1, 2016, entitlement to an increased rating in excess of 30 percent for residual of the right knee replacement 3. Entitlement to an increased rating in excess of 10 percent for right knee instability Disability ratings are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. Separate codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two 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. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Board will consider entitlement to “staged” ratings to compensate for times when the disability may have been more severe than at others. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal exertion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating 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 malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are related considerations. 38 C.F.R. § 4.45. The Veteran filed a claim for an increased rating for the right knee in September 2014. As of February 7, 2021, some rating provisions for knee impairment changed. Those findings do not alter the findings herein, and are not for application until the effective date. Diagnostic Code 5055 remains essentially unchanged, but for the period for which a 100 percent rating is assigned post replacement. That period was shortened and does not apply herein. Diagnostic Code 5257 was changed to require more specific findings that in the pre-revision code set out below. These provisions provide no basis for an increase given the current facts post-knee replacement. The pre-revision changes are more favorable to the facts of this case and will be applied. Pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent 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. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Diagnostic Code 5257 provides ratings based on recurrent subluxation or lateral instability, which can be rated as slight, rated at 10 percent; moderate, rated at 20 percent; or severe, rated at 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Separate ratings for knee disabilities may be assigned for disability of the same joint if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. Under Diagnostic Code 5259, a 10 percent rating can be assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. Under Diagnostic Code 5258, a 20 percent evaluation can be assigned for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Evaluations for knee impairment can also be assigned due to ankylosis, tibia and fibula impairment, or genu recurvatum, but as the Veteran has not at any time been found to have ankylosis, tibia and fibula impairment, or genu recurvatum, these diagnostic codes are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. The Veteran was afforded a VA examination in January 2015. The examiner noted diagnoses of meniscal tear, and instability. The Veteran reported chronic knee pain, flare ups twice weekly, stiffness, loss of motion, crepitus, and swelling. Functional impairment included limited standing, walking, and inclines. Right knee range of motion was from 0 to 120 degrees. There was pain with weight bearing and mild tenderness. The Veteran was able to perform repetitive use testing with additional pain but no loss in range of motion. Although the Veteran was not examined during a flare up, the VA examiner commented that flare ups additionally limited functional ability due to pain, fatigue, weakness, and lack of endurance. Muscle strength testing was normal, with no atrophy. Joint stability testing was normal with no history of recurrent subluxation or lateral instability noted. The Veteran was noted to have a meniscal tear with frequent episodes of joint pain and effusion. The Veteran underwent a total knee replacement in October 2015. In an October 2016 rating decision, the Veteran was granted a temporary total rating, effective October 1, 2015 and a 30 percent rating, effective December 1, 2016. In a June 2017 private treatment record, the Veteran's orthopedist noted that the Veteran originally sustained an injury to give out or buckle. Since his knee replacement, the Veteran reported soreness and using a cane. Upon examination, the Veteran knee range of motion was “good and not painful with no obvious instability.” The Veteran was afforded a VA examination of his knees in October 2018. The examiner noted a diagnosis of degenerative joint disease with instability, right knee. The Veteran reported progressive pain and stiffness of the right knee with some instability. He denied flare ups but stated that after repeated use over time, he could not run, crawl, or climb. Range of motion testing of the right knee showed full range from 0 to 140 degrees with pain on flexion and extension. There was also mild localized tenderness or pain on palpation of the medial joint. There was no evidence of pain with weight bearing and no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional limitations or loss of range. However, the VA examiner noted that the Veteran's functional ability was weakened by pain with repeated use over a period of time. Muscle strength testing was normal with no atrophy. The examiner noted a history of slight lateral instability, but joint stability testing was normal. In his January 2019 substantive appeal, the Veteran stated that his knee replacement still hurts. Upon review of the evidence of record, entitlement to ratings in excess of those assigned is not warranted. Prior to October 1, 2015, the evidence shows that the Veteran has consistently experienced painful motion in his right knee through the period on appeal. However, the evidence does not show limitation of flexion or extension that would warrant compensable ratings under Diagnostic Codes 5260 or 5261. The Board notes that the VA examiner considered whether flare ups or repeated use over a period of time would provide for a higher rating and found they do not. From December 1, 2016, a rating in excess of 30 percent is not warranted for the Veteran’s service-connected right knee total arthroplasty residuals. The Board has considered entitlement to a higher rating under Diagnostic Codes 5256, 5261, and 5262, as directed by Diagnostic Code 5055. Ankylosis, nonunion of the tibia and fibula, lateral instability, recurrent effusion, or recurrent subluxation is simply not shown nor contended. The Veteran’s limitation of motion of the right knee also does not equate limitation of extension of the leg to 30 degrees and as a result a higher rating under Diagnostic Code 5261 is also not warranted. In fact, at the October 2018 VA examination, the Veteran demonstrated normal extension and flexion and the 2017 private treatment record showed that his range of motion was good. The Board also finds that the assignment of a higher (60 percent) rating is not warranted under Diagnostic Code 5055 for severe, chronic residuals of knee replacement consisting of severe painful motion or weakness in the right knee. Evidence of record during the appeal period shows that the Veteran suffered from no more than intermediate degrees of residual weakness, pain, or limitation of motion in the right knee that does not warrant the assignment of a rating in excess of 30 percent under Diagnostic Codes 5055, 5256, 5261, or 5262. Therefore, the Veteran’s claim is denied. Regarding instability, the Veteran is assigned a 10 percent rating for slight instability during the entire period on appeal. The Board finds that a higher rating is not warranted. Although the Veteran reports weakness and effusion, joint stability tests were consistently normal, and no history of lateral instability or recurrent subluxation was noted. Therefore, a claim for an increased rating under Diagnostic Code 5257 is denied. Based on the foregoing, the preponderance of the evidence is against the claim. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against assignment of any other higher ratings, it is not applicable. 38 U.S.C. § 5107. New and Material Evidence 4. Whether new and material evidence has been received sufficient to reopen a claim of service connection for a left knee disorder A final rating decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994) New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). January 2008 and May 2011 rating decisions denied the Veteran's claim of service connection for a left knee disorder. The Veteran did not appeal these decisions and did not submit new and material evidence within one year. Therefore, these decisions are final. In September 2014, the Veteran filed a new claim of compensation for service connection for a left knee disorder. Since the May 2011 rating decision, the new evidence consists of the Veteran's statements regarding how his service-connected right knee disorder caused his left knee disorder. After having carefully considered the matter, the Board finds that this evidence, taken as true, tends to support the Veteran’s claim, the Board finds it is material to the Veteran’s claim and it raises a reasonable possibility of substantiating the claim of service connection. Therefore, his petition to reopen a claim of service connection for a left knee disorder is granted. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disorder is remanded. 2. Entitlement to service connection for a back disorder is remanded. 3. Entitlement to service connection for a left knee disorder is remanded. Remand is necessary to obtain adequate VA opinions. In January 2015 and December 2018, the Veteran was afforded VA examinations of his left hip, back, and left knee. The examiner diagnosed the Veteran with disorders and opined that his disorders were not secondary to his service-connected right knee disorder. However, no opinions were provided regarding whether these disorders were aggravated by his service-connected right knee disorder. Therefore, the Board finds that remand is necessary for an addendum opinion. The matters are REMANDED for the following action: Provide the claims file to the December 2018 VA examiner, or to another equally qualified medical professional if that individual is not available, for the purpose of securing an addendum opinion regarding the likely etiology of the left hip, back, and left knee disorders. The complete electronic claims file must be reviewed in conjunction with the examination, and the examiner must note that he/she reviewed the claims file. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's left hip, back, and left knee disorders were caused or aggravated by his service-connected right knee disorder. The examiner should note that the term “aggravated by” refers to a worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. If the opinion is that one or more service-connected disabilities aggravated the claimed left knee, left hip, or back disorders, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. All opinions must be supported by a complete and reasoned rationale based on a discussion of the facts and any relevant medical literature. Consideration of all lay statements and other pertinent evidence on file should be undertaken. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.