Citation Nr: 21027999 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-31 051 DATE: May 10, 2021 ORDER Entitlement to a rating of 60 percent for left knee arthritis status-post left total knee arthroplasty during the entire period on appeal excluding periods of temporary total evaluations is granted. Entitlement to a separate 10 percent rating for left knee instability prior to February 7, 2021 is granted. Entitlement to a rating in excess of 60 percent from November 18, 2019 for left knee arthritis status-post left total knee arthroplasty is denied. REMANDED Entitlement to a rating in excess of 10 percent for left knee instability from February 7, 2021 is remanded. FINDINGS OF FACT 1. Excluding the periods of temporary total disability evaluations, during the period on appeal, the Veteran's left knee arthritis status-post left total knee arthroplasty more nearly approximated chronic residuals consisting of severe painful motion or weakness in the left leg. 2. Slight lateral instability manifested in the left knee prosthesis; at no time prior to February 7, 2021 was there moderate lateral instability or recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating for the entire period on appeal excluding periods of temporary total evaluations for left knee arthritis status-post left total knee arthroplasty have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.10, 4.16(a), 4.71a, Diagnostic Code 5055 (2021). 2. The criteria for a rating in excess of 60 percent for left knee arthritis status-post left total knee arthroplasty have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.10, 4.16(a), 4.71a, Diagnostic Code 5055 (2021). 3. A separate rating of 10 percent for left knee instability post left total knee arthroplasty have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5257 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1976 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In November 2018, the Board remanded these issues to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. In a July 2010 rating decision, a temporary 100 percent evaluation was assigned effective May 10, 2010, based on a left knee replacement surgery. A 60 percent rating was assigned under Diagnostic Code 5055 effective July 1, 2011. A temporary 100 percent evaluation was assigned effective October 24, 2011, and a 30 percent rating was assigned effective December 1, 2012. Another temporary 100 percent evaluation was assigned July 16, 2014, and a 30 percent rating was assigned effective September 1, 2015 to November 18, 2019 and 60 percent thereafter. The Veteran contends that 60 percent ratings should be in effect for the entire period following July 1, 2011, excluding the periods of temporary total evaluations. Prior to February 7, 2021, Diagnostic Code 5055, which governs knee replacement (prosthesis), provides that for one year following implantation of the prosthesis, the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5256, 5261 or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Effective February 7, 2021, Diagnostic Code 5055 provides that for four months following resurfacing or replacement (prosthesis), the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5256, 5261 or 5262. The minimum rating for a total replacement is 30 percent. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5055). Diagnostic Code 5055 addresses chronic residuals consisting of painful or limitation of motion and weakness but not lateral instability that may occur with the prosthesis. Therefore, consideration of Diagnostic Code 5257 is warranted. Under Diagnostic Code 5257, the criteria for impairment of the knee other than ankylosis, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. C.F.R. § 4.71a, Diagnostic Code 5257. The terms "slight," "moderate," and "severe" are not defined in the 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." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "slight" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. Effective February 7, 2021 forward, under updated Diagnostic Code 5257, the criteria for other impairment of the knee recurrent subluxation, a 10 percent evaluation is assigned for sprain, incomplete ligament tear or complete ligament tear (repaired, unrepaired, or failed repair) causing peristent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or for bracing or ambulation. A 20 percent evaluation is assigned for one of the following: a sprain, incomplete ligament tear, or repaired complete ligament tear causing peristent instability, and medical provider prescribes a brace and/or assistive device (e.g., cane(s) crutch(es), walker) for ambulation or unrepaired or failed repair of complete ligament teart causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent evaluation is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Additionally, effective February 7, 2021 Diagnostic Code 5257 also provides a rating for patellar instability and a 10 percent evaluation is warranted 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 evaluation 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. A 30 percent evaluation is warranted 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). 1. Entitlement to a rating in excess of 30 percent from December 1, 2012 to July 16, 2014 for left knee arthritis status-post left total knee arthroplasty 2. Entitlement to a rating in excess of 30 percent from September 1, 2015 to November 18, 2019 for left knee arthritis status-post left total knee arthroplasty 3. Entitlement to a rating in excess of 60 percent from November 18, 2019 for left knee arthritis status-post left total knee arthroplasty July 2011 VA treatment records reflect that the Veteran reported left knee pain and swelling. He stated that he had increased pain over his lateral knee with weight bearing. A corresponding medical note reveals that the Veteran was observed using a cane and the left knee exhibited effusion, laxity, crepitus, and range of motion 0 to 100 degrees. In September 2011 correspondence, the Veteran reported increased left knee pain and constant cane use. He reported severe pain that periodically required him to go to the emergency room. The Veteran stated that he was unable to fully move his left knee without pain. October 2011 VA treatment records reflect that the Veteran had left knee range of motion 0 to 100 degrees with painful flexion. There was no effusion, no midflexion instability and his sensation was intact. The Veteran attended a VA examination for his knees in November 2012. He reported edema and stiffness but explained that he no longer had pain. He denied any left knee flare-ups and denied using any assistive devices. The Veteran reported periodic instability when using the stairs or walking on an incline. Range of motion revealed flexion to 105 degrees without pain and no limitation of extension. Repetitive use testing did not result in any additional loss of motion. The examiner determined that the Veteran did not have functional loss or impairment of the left knee. There was no pain, no instability, and normal muscle strength. During August 2013 VA treatment, the Veteran reported chronic left leg swelling and pain. In September 2013 correspondence, the Veteran requested reevaluation of his left knee because of edema and pain. October 2013 VA treatment records reflect reported left knee instability with observed full range of motion, and no effusion or laxity. The Veteran attended a VA examination for his knees in November 2013. He reported left knee buckling but denied any falls. He reported chronic swelling and pain. The Veteran reported using a cane in an emergency. He reported left knee flare-ups once to twice a week, usually lasting a few seconds. Sometimes the flare-ups required rest. The Veteran reported the inability to kneel. Range of motion revealed flexion to 95 degrees without pain and no limitation of extension. Following repetitive use testing the Veteran's left flexion was to 90 degrees. The examiner determined that the Veteran's left knee disability caused less movement than normal and swelling. There was no instability, and normal muscle strength. The Veteran reported retiring from his job at the Department of Corrections because he was afraid to get into any physical altercation because of his knee condition. He also reported difficulty walking on the floors. The examiner noted chronic knee swelling. In March 2014 correspondence, the Veteran objected to the findings of the November 2013 VA examiner. He explained that he did have issues with his knee implant, to include buckling, popping, swelling, and numbness. He reported that he was scheduled to have another left knee surgery. Private treatment records reflect that he had left knee revision surgery in July 2014. During the surgery, his left knee was noted to have extensive bone loss and the tibia had nearly been damaged all the way down to the distal aspect of the metaphysis which had narrowed significantly. The Veteran attended a VA examination in October 2015. The Veteran reported left knee weakness and difficulty using the stairs. He also reported constant cane use. The Veteran stated that he only had left knee pain with movement, but that the pain was very intense, rated at an 8-9/10 on the pain scale. He reported that he was only able to walk for ten minutes without stopping and he experienced periodic buckling. He denied flare-ups. Range of motion testing revealed flexion to 95 degrees with pain and zero degrees extension. The examiner determined that the Veteran's left knee disability would prevent him from squatting. There was evidence of pain on weight bearing and objective evidence of crepitus. Following repetitive use testing the Veteran's left flexion was to 85 degrees. There was a reduction in muscle strength on extension, which was rated as 4/5. Joint stability testing was performed and there was no indication of any instability. January 2016 VA treatment records reflect that the Veteran exhibited full range of motion and had optimum muscle tone. The Veteran had left knee flexion to 40 degrees during April 2016 VA treatment. Following complaints of left knee clicking and giving out, April 2016 VA diagnostic testing revealed new lucencies around the stem of the femoral component of the left knee. In his April 2016 notice of disagreement, the Veteran reported constant left knee pain and decreased quality of life. In his June 2016 VA Form-9, the Veteran objected to the findings of the October 2015 VA examination. He stated that his left knee condition had progressed in severity, and he experienced buckling and severe pain. He reported difficulty performing yardwork, walking on uneven ground, and carrying photography equipment. During June 2016 VA treatment, he exhibited left knee flexion to 120 degrees and extension to 0 degrees. July 2016 VA treatment records describe the Veteran's left knee as painful and unstable. During February 2017 VA treatment, he exhibited left knee flexion to 100 degrees and extension to 0 degrees. July 2017 VA treatment records note "chronic" pain in the knees. August 2017 diagnostic testing of the left knee revealed no findings of worsening of aseptic loosening of the hardware and no manifestations of prosthetic infection. February 2018 VA treatment reveals that the Veteran wore a left knee brace but "labs and bone scan" were negative for infection or loosening. The Veteran reported left knee pain, reduced range of motion, and instability during December 2018 VA treatment. During October 2019 VA treatment, the Veteran was able to demonstrate left knee flexion to about 100 degrees. Active flexion and extension were intact. There was concern over whether the Veteran was exhibiting some signs of loosening of the revision tibial component. The Veteran attended a VA examination in November 2019. He reported increased pain and instability and denied any flare-ups. He reported difficulty walking on uneven ground or walking long distances. Range of motion testing revealed flexion to 100 degrees and 5 degrees extension. Pain was noted during flexion but did not cause functional loss. The examiner determined that the Veteran's left knee disability would prevent him from squatting. There was evidence of pain on weight bearing and no objective evidence of crepitus. Following repetitive use testing the Veteran's left flexion was to 95 degrees. The Veteran's left knee was being examined following repeated use over time. Pain and a lack of endurance significantly limited the Veteran's functional ability. Range of motion was described as 85 degrees flexion and 5 degrees extension. There was a reduction in muscle strength on flexion, which was rated as 4/5. Joint stability testing was performed and there was no indication of any instability. The examiner determined that the residuals of the Veteran's left knee total knee arthroplasty consisted of loosening of the prosthesis, pain, and instability. She stated that the residuals from his left knee total knee replacement were chronic and consisted of severe painful motion or weakness. In August 2020 correspondence, the Veteran contended that excluding the periods of temporary total evaluations, he was entitled to 60 percent evaluations for his left knee during the entire period on appeal. He explained that in regard to the severity of his left knee, his VA treatment records were consistent throughout the appeal period. The Board agrees with the Veteran's contentions. His VA treatment records are relatively consistent in regard to the severity of the pain and weakness experienced in the left knee. Though there are short periods where the Veteran appeared pain free, he regularly reported severe pain and weakness, and consistently used a brace for most of the period on appeal. Furthermore, he required two additional surgeries because his left total knee arthroplasty kept failing. Most importantly, the record demonstrates that the prothesis attachment to the bone structure was not secure and reconstruction was necessary at least twice to correct looseness and associated swelling. The Veteran was awarded a 60 percent disability rating by the agency of original jurisdiction (AOJ) based on the findings of the November 2019 VA examiner and effective at the time of that examination. There is no evidence indicating that the Veteran's left knee disability increased in severity at the time of the November 2019 VA examination. To the contrary, the VA treatment records are relatively consistent. Accordingly, resolving reasonable doubt in his favor, throughout the period on appeal, the disability picture more nearly approximates chronic residuals consisting of severe painful motion, with limitation of motion resulting in decreased functional mobility and the need for assistive devices. Excluding the periods of temporary total disability evaluations for the left knee, a disability rating in excess of 60 percent is not warranted for the left knee disability. DC 5055 allows for rating residuals of knee replacement by analogy to DCs 5256 (ankylosis), 5261 (limitation of extension), and 5262 (impairment of the tibia and fibula) below the 60 percent level, but does not at all allow for the application of analogous ratings if the requirements for a 60 percent rating have been satisfied. To the contrary, at that point, and beyond the first year after surgery, DC 5055 simply provides for a single 60-percent rating that contemplates chronic residuals consisting of severe painful motion or weakness in the affected extremity. This is consistent with the amputation rule, which allows for a maximum rating of 60 percent for disabilities affecting the middle and lower thirds of a lower extremity. See 38 C.F.R. §§ 4.68, 4.71a, DCs 5160-5164. Simply put, DC 5055 does not allow for a schedular rating in excess of 60 percent beyond the one-year period following implantation of prosthesis, by analogy or otherwise. Because a 60 percent rating under DC 5055 is the maximum rating available under the law beyond the one-year period following implantation of prosthesis, the Board finds that a disability rating in excess of 60 percent for the left knee disability is not warranted. In conclusion, the Board finds that an increased 60 percent disability rating, but no higher, is warranted between December 1, 2012 and July 16, 2014, and after September 1, 2015. 4. Entitlement to a separate disability rating for left knee instability prior to February 7, 2021 As discussed in greater detail above, the Veteran's service-connected left knee is currently rated based on range of motion but not instability. Throughout the period on appeal, the Veteran has reported left knee instability and buckling. Herein, the Board finds that a 10 percent rating for left knee instability prior to February 7, 2021 is warranted. The evidence during this period demonstrates that the Veteran's left knee did not demonstrate at least moderate recurrent subluxation and/or lateral instability which is required for a higher 20 percent rating under Diagnostic Code 5257. The Board acknowledges the Veteran's reported instability and that he must use a brace and cane on a regular basis for knee pain. However, stability testing during the November 2013, October 2015, and November 2019 VA examinations were normal. Therefore, the Board finds that the evidence does not demonstrate lateral instability or recurrent subluxation in the Veteran's left knee such that more than slight impairment is evidenced. These findings are consistent with a 10 percent rating under Diagnostic Code 5257. Here, we find that the objective evidence is more probative and more credible than non-specific lay statements because three different examiners over six years determined that no instability was present following testing. The Board considered whether this violates the amputation rule of 38 C.F.R. § 4.68 (2021). The combined rating would not exceed the 80 percent rating for an amputation above the knee in the upper third of the leg. As explained in more detail below, remand is warranted to determine if the Veteran's left knee instability warrants a higher rating under the revised criteria for rating musculoskeletal disabilities. REASONS FOR REMAND 5. Entitlement to a separate disability rating for left knee instability from February 7, 2021 Under the revised criteria for rating musculoskeletal disabilities effective February 7, 2021, Diagnostic Code 5257 provides a 20 percent rating for recurrent subluxation or instability or patellar instability that requires a prescription by a medical provider for a brace, cane, walker, or crutch. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Here, the record clearly indicates the Veteran uses assistive devices, but it is not clear whether these devices are medically prescribed after February 7, 2021. As such, remand for a clarification is required. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his left knee instability. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran's lay statements regarding his current symptoms, the examiner should identify any findings related to the Veteran's left knee instability and fully describe the current extent and severity of those symptoms. The examiner should discuss all findings in terms of the Schedule of Ratings for the Knee and Leg, to include the new amended rating criteria for Diagnostic Code 5257. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding symptoms and the opinion should note that consideration. A clearly stated rationale must be provided for any opinion offered. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.