Citation Nr: 21026594 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 07-38 845 DATE: May 3, 2021 ORDER A 60 percent initial disability rating, but no higher, for the service-connected total left knee arthroplasty with history of degenerative arthritis, left knee, associated with residuals, gunshot wound left tibia, lower one-third with comminuted facture and retained bullet and scar (hereinafter left knee disability), for the period on appeal from February 1, 2010, is granted subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT Since February 1, 2010, the Veteran's service-connected total left knee arthroplasty with history of degenerative arthritis more nearly approximated chronic residuals consisting of severe painful motion in the affected extremity, and symptoms such as pain, weakness, swelling, stiffness, limping, crepitus, incoordination, and decreased range of motion, limiting his everyday activities. CONCLUSION OF LAW The criteria for entitlement to an initial 60 percent disability rating for the service-connected left knee disability have been met since February 1, 2010, excluding the period of a total disability rating due to convalescence. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Codes (DCs) 5003-5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1965 to July 1990. This matter is before the Board of Veterans' Appeals (the Board) on appeal from the November 2006 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, granted service connection for degenerative arthritis, left knee with an initial evaluation of 10 percent effective July 20, 2006. The Veteran's Notice of Disagreement (NOD) was received in December 2006. The Statement of the Case was issued in September 2007, and the Veteran's VA Form 9, substantive appeal to the Board was received in November 2007. Then, a September 2009 rating decision granted a 100 percent disability rating for the service-connected degenerative arthritis, left knee from December 2, 2008 based on a period of convalescence, and a 30 percent disability rating from February 1, 2009, following the period of convalescence. An April 2010 rating decision recharacterized the disability as total left knee arthroplasty with history of degenerative arthritis, left knee, and granted a 100 percent evaluation from December 2, 2008, and a 30 percent evaluation February 1, 2010, based on a clear and unmistakable error (CUE). In a September 2010 decision, the Board denied an initial rating in excess of 10 percent for the service-connected left knee arthroplasty with history of degenerative arthritis prior to December 2, 2008 and remanded the claim for a disability rating in excess of 30 percent for the same disability from February 1, 2010. The claim was remanded pursuant to the January 2013 and May 2015 Board decisions. A July 2017 Board decision denied an evaluation in excess of 30 percent for the partial left knee arthroplasty with history of degenerative arthritis from February 1, 2010. The Veteran appealed the decision to the United States Court of Veterans Claims (the Court). In a July 2018 Order, the Court vacated the July 2017 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (JMR). A March 2019 Board decision remanded the claim pursuant to the July 2018 JMR. Of note, in a separate April 2018 rating decision, the RO granted a 100 percent disability rating for the service-connected degenerative arthritis, left knee from December 29, 2017 based on a period of convalescence, and a 30 percent disability from February 1, 2019. Also of note, an October 2010 rating decision granted service connection for slight instability of the left knee with an initial 10 percent evaluation effective July 20, 2006. A July 2012 rating decision severed service connection for the left knee instability from August 1, 2012 based on a CUE. Additionally, a June 2020 rating decision granted service connection for left knee surgical scars with an initial noncompensable evaluation effective April 12, 2013. An October 2020 rating decision confirmed and continued the evaluation. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Entitlement to a disability rating in excess of 30 percent for the service-connected left knee disability for the period on appeal from February 1, 2010, excluding periods of total disability rating due to convalescence. The Veteran contends that his left knee disability warrants a rating higher than currently assigned. The Veteran's total left knee arthroplasty with history of degenerative arthritis, left knee associated with residuals, gunshot wound left tibia, lower one-third with comminuted fracture and retained bullet and scar is rated as 30 percent disabling from February 1, 2010 under 38 C.F.R. § 4.71a DC 5003-5055, 100 percent from December 27, 2017, the day the Veteran underwent another knee left knee surgery, and 30 percent from February 1, 2019. The Veteran is also in receipt of a noncompensable rating from April 12, 2013 for left knee surgical scars associated with total left knee arthroplasty under 38 C.F.R. § 4.118, DC 7802. Finally, the Veteran is in receipt of a 10 percent disability rating for the service-connected slight instability of left knee from July 20, 2006 to January 1, 2013 under 38 C.F.R. § 4,71a DC 5257. VA recently amended the rating criteria for musculoskeletal conditions, effective February 7, 2021. Unless otherwise indicated, in cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. If an increased rating is warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Under the regulations prior to February 7, 2021, DC 5055 provided a 100 percent evaluation for the one year following implantation of the prosthesis; thereafter, a 60 percent rating is warranted for a total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a 30 percent rating is the minimum possible rating assignable. Intermediate degrees of residual weakness, pain, or limitation of motion (i.e. a level of disability in between those contemplated by the 30 and 60 percent ratings) are to be rated by analogy to DCs 5256, 5261, or 5262. 38 C.F.R. § 4.71a, DC 5055. Of note, a schedular evaluation greater than 60 percent is prohibited by the "amputation rule," found in 38 C.F.R. § 4.68, which prohibits the assignment of a combined rating for disabilities of an extremity higher than the rating for the amputation at the elective level, were amputation to be performed. Amputation at the elective level would be at thigh level, middle or lower thirds. Amputation at that level warrants only a 60 percent disability rating. 38 C.F.R. § 4.71a, DC 5165. As such, the Veteran cannot receive a higher rating for his status post total knee replacement than for an amputated leg. Under the revised VA regulations, effective February 7, 2021, governing musculoskeletal disabilities under 38 C.F.R. § 4.71a, the following applies to rating prosthetic implants and resurfacing: Note (1): When an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under diagnostic codes 5051-5056, an additional rating under §4.71a may not also be assigned for that joint, unless otherwise directed. Note (2): Only evaluate a revision procedure in the same manner as the original procedure under diagnostic codes 5051-5056 if all the original components are replaced. Note (3): The term "prosthetic replacement" in diagnostic codes 5051-5053 and 5055-5056 means a total replacement of the named joint. However, in DC 5054, "prosthetic replacement" means a total replacement of the head of the femur or of the acetabulum. Note (4): The 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of the 1-month total rating assigned under §4.30 following hospital discharge. Note (5): The 100 percent rating for 4 months following implantation of prosthesis or resurfacing under DCs 5054 and 5055 will commence after initial grant of the 1-month total rating assigned under §4.30 following hospital discharge. Note (6): Special monthly compensation is assignable during the 100 percent rating period the earliest date permanent use of crutches is established. Under the revised VA regulations, 38 C.F.R. § 4.71a, DC 5055 provides a 100 percent evaluation for four months following implantation of prosthesis or resurfacing; a 60 percent rating is warranted for prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity or with intermediate degrees of residual weakness, pain, or limitation of motion, rated by analogy to diagnostic codes 5356, 5261, or 5262; a 30 percent rating is the minimum evaluation, for total replacement only. A note following the criteria under DC 5055 indicates that at the conclusion of the 100 percent evaluation period, evaluate resurfacing under diagnostic codes 5256 through 5256; there is no minimum evaluation for resurfacing. The Veteran's records indicate that he underwent a left knee replacement in December 2008. In April 2010, the Veteran underwent a VA disability for his claim. He was noted to have a left knee replacement in December 2008. The Veteran's symptoms were listed as giving away, instability, pain, stiffness, weakness, incoordination, and decreased speed of joint motion. The Veteran was noted to use a cane and have an antalgic gait. There was no objective evidence of pain with active motion. The Veteran's left flexion was to 74 degrees and his extension was normal. There was no objective evidence of pain following repetitive motion or additional limitation of range of motion following three repetitions. There was ankylosis. The VA examiner cited April 2010 imaging studies, indicating degenerative change of patellofemoral joint with status post-surgery and mild osteopenia. A November 2010 private follow up note from Dr. M.H., indicates that the Veteran was seen for follow up for his left knee. It was noted that the Veteran is somewhat better than last time and does not limp all the time. It was also noted that the Veteran has some good days but has pain and crepitus in the medial aspect of the left knee, although no more varus. Upon examination, the Veteran ambulated without gait aids or limp, and had within a degree or two full extension with flexion to 120 degrees. He was noted to have no effusion and excellent muscle strength and tone. He was noted to have normal stability and no lateral joint line pain. The Veteran's x-rays showed no change in position or alignment. He was recommended to use Aleve for pain and participate in activity to tolerance. A February 2013 private treatment note from Dr. M.H. indicates that the Veteran was seen with left knee osteoarthritis, with symptoms including joint pain, stiffness, crepitation or grinding, swelling, and tenderness. The Veteran's pain was described as sharp and symptoms as intermittent. The Veteran reported his symptoms as mild and gradually worsening. The symptoms were noted to be exacerbated by joint use and relived by rest, ice, compression, elevation, and pain medication. It was noted that as a result of the hardware in his knee, he has developed pain, swelling, and a limp. The Veteran's knee was noted to crackle, pop, crunch, and hurt. It was noted that the Veteran lost his ability to flex and extend. Upon examination, his extension was to 5 degrees and flexion to 115. His swelling was noted to be mild and crepitus severe. In April 2013, the Veteran underwent a VA examination for his claim. The VA examiner reviewed the Veteran's history and VA treatment notes. The Veteran reported that his last doctor's visit with respect to his left knee was in February 2013, and that he was told that he has minimal arthritis in his left knee causing crunching. The Veteran reported not seeing anyone for his left knee in 2012. He also reported that he has not participated in physical therapy since 2009 and that when he lays down to sleep at night, he adjusts positions due to left knee pinching pain. The Veteran reported that in the mornings he can hardly walk due to left knee pain, which subsides with more walking. The Veteran was able to ambulate with no assistive device and had a slight limp line while walking. There was no deformity, malalignment drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, or instability. There were no flare ups noted. The Veteran's left knee flexion was to 115 degrees with pain at 100. His extension was to 5 degrees with no objective evidence of painful motion. The VA examiner noted that the Veteran was able to raise left leg straight at 0 degree extension at the knee without objective evidence of pain, indicating that therefore the limitation during testing is of uncertain etiology and not due to the service-connected left knee condition. The Veteran was able to perform repetitive use testing, with flexion to 115 degrees and normal extension. The VA examiner indicated that the Veteran had less movement than normal and pain on movement, which contributed to functional loss. There was no tenderness or pain on palpation. Muscle strength and joint stability testing was normal. There was no evidence of recurrent patellar subluxation or dislocation. The Veteran was noted to have a 1967 left tibial fracture which healed with chronic left leg pain. There were no meniscal conditions noted. The Veteran was not noted to have a total left knee joint replacement and no residual signs from his iForma placement in the medial knee. He was noted to have scars which were not painful, unstable, or covering an area greater than 6 square inches. His scars were described as stable, nontender, and not limiting motion or functioning. The Veteran's legs were noted to be equal in length. The Veteran was not noted to use assistive devices. X-ray studies were cited, with no evidence of patellar subluxation. An October 2014 private treatment note from Dr. M.H. indicates that the Veteran was seen for left knee osteoarthritis, with symptoms including joint pain, stiffness, crepitation or grinding, swelling, and tenderness. The Veteran described his pain as sharp and his symptoms as intermittent, mild, and gradually worsening. The Veteran's symptoms were noted to be exacerbated by joint use and relieved by rest, ice, compression, elevation, and pain medication. The Veteran's extension was to 10 degrees and flexion to 90 degrees. His swelling was noted to be mild, effusion trace, and crepitus severe. A November 2015 private treatment note from Dr. M.H. indicates that the Veteran was suffering from the same symptoms, which were described as moderate and gradually worsening. His extension was to 10 degrees and flexion to 95 degrees. In December 2015, the Veteran underwent a VA examination for his claim. He was diagnosed with left knee tendonitis and left knee hemiarthroplasty. Under history, the VA examiner indicated that the Veteran was shot in the left leg and reported his left knee being shattered. It was noted that the Veteran wore out the meniscus on the medial side due to abnormal shape of the bones after healing. The Veteran reported left knee hurting all the time and radiating to his left ankle. The Veteran also reported his knee aching up to the femur when lying in bed. He reported his being able to sit in the car for about 30 minutes and having to stop and get out. He reported the same problem with sitting for more than 30 minutes. The Veteran reported flare ups with weather changes from one to three days. He also reported being unable to pick up more than 15 lbs. without severe pain which lasts for one week. His flexion was 20 to 90 degrees and extension 90 to 20 degrees. It was noted that the Veteran had difficulty climbing stairs. Pain was noted on flexion. There was objective evidence of localized tenderness or pain on palpation. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss. The VA examiner was unable to determine without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time or during flare ups. Muscle strength testing was normal, without muscle atrophy. The Veteran was noted to have ankylosis in flexion between 10 and 20 degrees. Joint instability testing was normal. There were no shin splints. The Veteran was noted to have a meniscal tear with partial joint replacement. He was noted to regularly use orthotics and occasionally use a cane. In February 2016 the VA produced an addendum medical opinion regarding the issue of ankylosis. After a review of the Veteran's records, the VA examiner concluded that there is insufficient evidence to warrant or confirm a diagnosis of acute or chronic left knee ankylosis or its residuals. The VA examiner concluded that there is no left knee ankylosis and that the previous examiner checked off the box in error. In support, the VA examiner indicated that flexion 20 to 90 degrees with limited full extension does not equate to knee joint ankylosis. A December 2016 private treatment note from Dr. M.H. indicates that the Veteran ambulated without gait aids but with a limp. His extension was 10 degrees from full extension and his flexion was to 95 degrees. His stability was normal. He was noted to have a tender medial joint line. He was noted to have osteoarthritis in the medial compartment of the left knee status post medial spacer. It was noted that he is recommended to participate in activities to his tolerance. He was recommended to follow up in one year. A May 2017 private treatment note from Dr. M.H. indicates that the Veteran was seen for osteoarthritis of the left knee. His symptoms included joint pain and stiffness. The pain was described as dull and aching. The Veteran described his symptoms as intermittent, moderate in severity, and unchanged. His symptoms were noted to be exacerbated by joint use. He was noted to have crepitus and pain in the medial aspect of the knee. His range of motion was 5 to 10 degrees short of full extension and his flexion was a little over 100 degrees. There was no effusion. He was noted to have a slight limp. Stability was normal. A June 2017 treatment note from Dr. M.H. indicates that the Veteran underwent left knee surgery and was able to bend his knee without any pain. His symptoms were characterized as none. A November 2017 private treatment note from Dr. M.H. indicates that the Veteran was seen for left knee pain with an onset of approximately one month ago. The Veteran's symptoms included pain, swelling, locking and instability (with reports of several falls). It was noted that the Veteran may have twisted his knee. He reported his symptoms as moderate in severity and worsening. He also reported his symptoms being exacerbated by motion at the knee, weight bearing, walking, running, squatting, and bending. A December 2017 private treatment note from Dr. M.H., indicates that the Veteran's extension was recorded to 10 degrees and his flexion to 110. He was noted to ambulate without gait aids but with a limp. He was noted to have normal stability, but tender, painful, and crepitant medial joint line. It was noted that x-rays showed sclerosis above and below the metallic component between the femur and tibia medially. It was noted that the Veteran's lateral compartment remained normal. The Veteran was scheduled for knee surgery the same month. A March 2019 private treatment note from Dr. A.H. indicates that the Veteran was seen for left knee pain. He was noted to have a history of severe degenerative joint disease (DJD) with left knee medial arthroplasty. The Veteran's left knee pain was noted to be worsening. He was noted to be limping and using a cane. He received injections for his pain. In October 2019, the Veteran underwent a VA examination for his claim. Under diagnosis, the VA examiner listed total left knee arthroplasty with history of degenerative arthritis in 1967 and status post meniscal tear in 2019. The Veteran reported that his left knee buckles and is like a wash sometimes when he is walking. The Veteran reported using a cane and it was noted that he is unable to walk for a long period of time. It was noted that the Veteran's knee has gotten weaker and has caused him to fall. Loss of balance was noted. It was also noted that he underwent another procedure in December 2017. Pain, inability to walk for a long period of time, loss of balance, and weakness in the knee causing falls were listed under functional impairment. The Veteran's left knee flexion was 0 to 110 degrees and extension from 110 to 0, with pain noted on extension. Active and passive range of motion testing were the same and there was no evidence of pain with non-weight bearing. There was objective evidence of pain with weight bearing and objective evidence of crepitus. There was objective evidence of localized tenderness or pain on palpation in the anterior knee. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of range of motion. The VA examiner concluded that pain, weakness, fatiguability or coordination did not significantly limit functional ability with repeated use over time or during flare ups and that the Veteran's range of motion was the same. Swelling, interference with sitting, and interference with standing were listed as additional factors contributing to the Veteran's disability. Left knee muscle strength testing was 4/5 indicating active movement against some resistance. The Veteran was noted to have muscle atrophy 4 cm below the left knee, with a circumference of atrophied side of 30 cm and circumference of the more normal side being 32 cm. There was no ankylosis and no history of recurrent subluxation or lateral instability. There was no left side joint instability. History of left side medial and lateral meniscal tear was noted. Surgical meniscal tear repair was noted in 2008 and 2017, with cramping, pain, and weakness noted as residuals. The Veteran was noted to have left knee surgical scars related to his disability. The length of the scars was 10 cm by 0.1 cm. There was an additional 1 cm by 0.2 cm scar on the Veteran's left tibia. Imaging studies indicating arthritis were noted. A January 2020 private left knee x-ray report from Dr. A.H. indicates that the Veteran suffered a fall at home. Under impressions, small joint effusion was noted. There was no identified acute fracture. There was subchondral irregularity of the latera compartment similar to the previous x-ray report. There was no gross radiographic complication. An accompanying January 2020 private treatment note indicates that upon examination, the Veteran had left knee bruising and pain in the lateral aspect, and that his left lower extremity range of motion was normal. He was noted to have a waddling gait. A January 2020 private treatment note from Dr. C.B. indicates that the Veteran was seen for left knee pain. His symptoms included pain, swelling, decreased range of motion, and crepitus. His symptoms were described as moderate in severity and worsening after falling in the yard two weeks ago. The Veteran's symptoms were noted to be exacerbated by walking and bending. It was noted that the Veteran was able to do activities of daily living with limitations. The Veteran's pain was noted to be constant. His gait and station were noted to be normal, his left knee nontender with no effusion or crepitus. His extension was to 0 and flexion to 140. There was no patellar instability, no deformity, normal strength and tone. There was no laxity. The Veteran was treated with injections for his pain. Based on the symptoms discussed above, the Board finds that, for the period on appeal excluding the period of a total disability rating due to convalescence, the Veteran's left knee disability symptoms more closely approximated the criteria for a rating of 60 percent under the old and the revised criteria for DC 5003-5055. More specifically, the Board finds that the evidence shows the functional equivalent of chronic severe painful motion. In reaching this conclusion, the Board has assigned considerable probative value to the functional impairment noted in the VA examinations and private treatment records summarized above. The examinations consistently show a limited ability to walk, lay down to sleep, sit, pick up heavy objects, climb stairs, stand, or sit due to pain, swelling, weakness, and stiffness. The October 2019 VA examination report lists swelling, interference with sitting, and interference with standing as additional factors contributing to the Veteran's disability. The Veteran's records consistently indicate that his disability manifested in pain, swelling, stiffness, limping, decreased range of motion, and crepitus. The Veteran's reports of constant worsening pain as noted in his private treatment notes have been considered in granting the 60 percent rating. Having found the Veteran is entitled to a rating of 60 percent for the period since February 1, 2010, the Board need not consider whether higher or separate ratings are warranted; as DC 5055 in VA's rating schedule pertains specifically to evaluations of total knee replacement disabilities, the Veteran's disability will not be rated by analogy to any of the other DCs. Copeland v. McDonald, 27 Vet. App. 333, at 337 (2015). Even if it were possible to rate by analogy, the Veteran's left knee disability would remain at 60 percent under the pre- and post-February 7, 2021 regulation update. Other than the assignment of a temporary 100 percent evaluation due to convalescence, a 60 percent disability rating is the highest rating that can be assigned pursuant to the DCs applicable to the evaluation of knee and leg disabilities prior to or since February 7, 2021. (Continued on the next page) As such, the Veteran's left knee disability more nearly approximated chronic residuals that manifested as severe painful motion and stiffness in the affected extremity. As such, an initial 60 percent disability rating under DC 5003-5055 is warranted from February 1, 2010. S. Merrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.