Citation Nr: 21028531 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-06 244 DATE: May 11, 2021 ORDER For the period of the claim prior to February 6, 2018, a rating in excess of 20 percent for right knee degenerative arthritis under Diagnostic Code 5258 is denied. For the period of the claim prior to February 6, 2018, a separate rating of 20 percent for right knee instability under Diagnostic Code 5257 is granted. From February 6, 2018 through March 31, 2019, a rating of 100 percent for a total right knee replacement under Diagnostic Code 5055 is granted. Beginning March 31, 2019, a rating of 30 percent for residuals of a right knee replacement under Diagnostic Code 5055 is granted. REMANDED The issue of entitlement to a rating in excess of 30 percent for residuals of a right knee replacement on or after March 31, 2019, is remanded. FINDINGS OF FACT 1. Prior to February 6, 2018, the Veteran's right knee degenerative arthritis has been manifested by flexion limited to no more than 95 degrees; 0 degrees of extension; a semilunar cartilage condition with frequent episodes of locking, pain, and effusion; and moderate instability. 2. On February 6, 2018, the Veteran underwent a total right knee replacement, and she was discharged from the hospital on February 9, 2018. CONCLUSIONS OF LAW 1. Prior to February 6, 2018, the criteria for a rating in excess of 20 percent for right knee degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261, 5258 (2018). 2. Prior to February 6, 2018, the criteria for a separate rating of 20 percent for right knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2018). 3. From February 6, 2018 through March 31, 2019, the criteria for a rating of 100 percent for a right knee replacement have been met, and the separate ratings under Diagnostic Codes 5258 and 5257 are discontinued. 38 U.S.C. §§ 1155, 5107 (2012); C.F.R. §§ 4.30, 4.71a, Diagnostic Code 5055 (2018). 4. Beginning April 1, 2019, a rating of 30 percent for residuals of a right knee replacement have been met. 38 U.S.C. §§ 1155, 5107 (2012); C.F.R. § 4.71a, Diagnostic Code 5055 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1987 to May 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. As the Veteran is now in receipt of a combined rating of at least 30 percent, the issue of entitlement to additional compensation for a dependent spouse is REFERRED to the agency of original jurisdiction (AOJ) for appropriate action. See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. However, the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. 1. Entitlement to a rating in excess of 20 percent for right knee degenerative arthritis prior to February 6, 2018 Prior to the Veteran's December 2015 claim for an increased rating, her service-connected right knee disability was assigned a 20 percent rating under Diagnostic Code 5257 based on moderate instability. In the March 2016 rating decision on appeal, the RO continued the 20 percent rating, but indicated that the rating was based on dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion under Diagnostic Code 5258. However, the Veteran's rating decision codesheet indicates that the current 20 percent rating for arthritis was evaluated analogously under Diagnostic Code to 5262, which relates to malunion of the tibia and fibula with moderate knee or ankle disability. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). As there is no evidence of impairment of the tibia and fibular and/or malunion or nonunion of the tibia and fibula, the Board finds that use of this diagnostic code is inappropriate and was likely a typographical error. Regardless, there are other diagnostic codes that more accurately reflect the Veteran's disability, as will be shown below. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, a 20 percent rating is warranted for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a maximum 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Full knee flexion is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a maximum 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full knee extension is to 0 degrees. 38 C.F.R. § 4.71a, Plate II. The evaluation of the same manifestation or disability under different diagnoses is to be avoided. 38 C.F.R. § 4.14. Separate ratings under different diagnostic codes are only permissible where none of the symptomatology for one condition is duplicative of or overlapping with the symptomatology of another condition. Esteban v. Brown, 6 Vet. App. 259, 26 (1994). Upon review of the record, the Board finds that the Veteran's right knee disability warrants a 20 percent rating under Diagnostic Code 5257 and a 20 percent rating under Diagnostic Code 5258 during the period of the claim prior to February 6, 2018. As the Veteran is already in receipt of a 20 percent rating for her right knee disability, this decision grants a separate 20 percent rating. The Veteran underwent a VA examination in February 2016, during which she reported constant, throbbing right knee pain and stiffness, which limited her ability to climb stairs, bend, squat, kneel, and engage in prolonged standing, carrying, and driving. She denied using any assistive devices. It was noted that prior imaging studies revealed degenerative joint disease, anterior cruciate ligament (ACL) repair, status post repair with failed ACL graft; obliteration of the meniscus; chondromalacia of patellofemoral joint; and extensive osteoarthritis. It was also noted that the Veteran had moderate recurrent patellar dislocation. Range of motion testing revealed 115 degrees of flexion and 0 degrees of extension. Pain and functional loss were noted, but there was no additional limitation after repetition or evidence of ankylosis. A physical examination revealed tenderness to palpation on the medial aspect of the knee over to the anterior knee, and the Veteran walked with an antalgic gait due to her right knee disability. An anterior joint stability test was normal, but posterior, medial, and lateral joint stability tests were 1+ (0-5 millimeters). The examiner characterized the Veteran's lateral instability as "slight." It was also noted that the Veteran had a history of a semilunar cartilage condition (meniscal tear) with frequent episodes of locking, pain, and effusion. Private treatment records show that the Veteran began receiving Supartz injections in November 2015 for constant right knee pain and swelling. She reported difficulty squatting and going up stairs, a painful antalgic gait, and severe pain with prolonged driving. X-rays revealed severe collapse of the medial compartment of the right knee. The Veteran's treatment provider noted that she will eventually need a total knee replacement. An August 2017 private treatment record shows that the right knee exhibited 95 degrees of flexion and 0 degrees of extension. Medial collateral ligament laxity was 2+, a drawer sign (posterior instability) was 1+, and a Lachman's test was positive. During the October 2020 Board hearing, the Veteran testified that prior to undergoing knee replacement surgery, she had symptoms of pain, swelling, and missing cartilage in her knee, which made it feel like her knee was slipping or sliding out of place. She denied debilitating flare-ups, but stated that her right knee was constantly painful. She reported wearing a knee sleeve for extra stability about 50 percent of the time but denied wearing a brace. With respect to Diagnostic Code 5257 (instability and subluxation), the Board finds that the criteria for a rating of 20 percent have been more nearly approximated prior to February 6, 2018. As noted above, the Veteran was previously in receipt of a 20 percent rating for instability under Diagnostic Code 5257 prior to her claim for an increase. During the February 2016 VA examination, there was objective evidence of posterior, medial, and lateral instability, and recurrent patellar dislocation, which the examiner characterized as moderate. See https://medical-dictionary.thefreedictionary.com/patellar+dislocation (defining patellar dislocation as subluxation of the patella, or kneecap). In August 2017, there was objective evidence of medial, anterior, and posterior instability. Based on the foregoing, the Board finds that the evidence of record more nearly approximates moderate recurrent subluxation or lateral instability for the period of the claim prior to February 6, 2018. Accordingly, a 20 percent rating is warranted under Diagnostic Code 5257. The Board finds that a rating in excess of 20 percent is not warranted under Diagnostic Code 5257, as posterior, medial, and lateral joint stability tests performed during the February 2016 VA examination were 1+ (0-5 millimeters), which is the least amount of instability beyond normal. The VA examiner characterized the Veteran's lateral instability as "slight" and her recurrent patellar dislocation as "moderate." In August 2017, medial collateral ligament laxity was 2+, which is indicative of a level of instability that is less severe than 3+ (10 to 15 millimeters), and a drawer sign was 1+, which is the least amount of instability beyond normal. Based on the foregoing, the Board finds that the evidence of record shows no more than moderate recurrent subluxation or lateral instability prior to February 6, 2018. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. With respect to Diagnostic Code 5258 (dislocated semilunar cartilage), the February 2016 VA examiner indicated that the Veteran had a semilunar cartilage condition (meniscal tear) with frequent episodes of locking, pain, and effusion. Accordingly, a 20 percent rating is warranted under Diagnostic Code 5258. This is the highest rating available under this diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5258. The Board finds that the Veteran may receive separate ratings under Diagnostic Codes 5257 and 5258. The rating assigned under Diagnostic Code 5257 is based on symptoms of ligament instability and the kneecap moving or sliding out of place. See https://medlineplus.gov/ency/article/001070.htm (patellar dislocation occurs when the kneecap moves or slides out of place). The rating assigned under Diagnostic Code 5258 is based on symptoms of locking, painful motion, pain, and effusion due to a torn meniscus. See https://medlineplus.gov/ency/patientinstructions/000684.htm (a meniscus tear is a tear in the shock-absorbing cartilage of the knee, which acts as a cushion between the ends of bones in a joint). The Board has considered whether a higher rating is warranted under diagnostic codes based on limitation of motion. With respect to Diagnostic Codes 5260 and 5261 (limitation of flexion and extension), the evidence of record shows that the Veteran's right knee exhibited, at worst, 95 degrees of flexion and 0 degrees of extension. Even considering the Veteran's subjective complaints of pain and other symptoms described in DeLuca, there is no evidence of flexion limited to 45 degrees or less or extension limited to 10 degrees or more such that a compensable rating would be warranted based on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261; see also Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). Accordingly, a compensable rating is not warranted based on limitation of motion under Diagnostic Code 5260 or 5261 at any time prior to February 6, 2018. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Moreover, as the rating being assigned under Diagnostic Code 5258 contemplates painful motion, separate ratings based on limitation of motion under Diagnostic Codes 5260 and 5261 would be pyramiding. See 38 C.F.R. § 4.14; see also Esteban, 6 Vet. App. at 261. In sum, the criteria for 20 percent ratings under both Diagnostic Codes 5257 and 5258 have been met for the period of the claim prior to February 6, 2018. To this extent, the appeal is granted. February 6, 2018 through March 31, 2019 A total disability rating (100 percent) will be assigned from the date of hospital admission and continue for a period of one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative rituals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). Additionally, Diagnostic Code 5055 provides for the assignment of a 100 percent rating for a prosthetic replacement of a knee joint for one year following implantation of the prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The 100 percent rating for the year following implantation of prosthesis will commence after an initial grant of a one-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. 38 C.F.R. § 4.71a, Diagnostic Code 5055, Note (1). Upon review of the record, the Board finds that a 100 percent for a total right knee replacement is warranted from February 6, 2018 through March 31, 2019. As this rating is the highest evaluation available, the separate ratings for the right knee under Diagnostic Codes 5258 and 5257 must be discontinued to prevent pyramiding, and the knee condition must be rated under Diagnostic Code 5055. See 38 C.F.R. § 4.14. The record shows that the Veteran underwent a total right knee arthroplasty on February 6, 2018, and she was discharged from the hospital on February 9, 2018. As such, she is entitled to a temporary 100 percent rating under 38 C.F.R. § 4.30 from the date of admission to the hospital (February 6, 2018) and continuing for one month from the first day of the month following her discharge. Thereafter, she is entitled to a 100 percent rating for a total right knee replacement under Diagnostic Code 5055 for one year. Accordingly, a 100 percent rating is granted from February 6, 2018 through March 31, 2019. April 1, 2019 to the Present Under Diagnostic Code 5055, after the assignment of a 100 percent rating for one year, a minimum rating of 30 percent is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy under Diagnostic Codes 5256, 5261, or 5262. Id. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. Upon review of the record, the Board finds that a rating of 30 percent for residuals of a right knee replacement is warranted beginning April 1, 2019. As the Veteran underwent a total right knee replacement, she is entitled to a minimum rating of at least 30 percent following the one-year 100 percent rating. Accordingly, a rating of 30 percent is assigned as of April 1, 2019. The issue of entitlement to a rating higher than 30 percent on or after that date is addressed in the remand portion below. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for residuals of a right knee replacement on or after April 1, 2019, is remanded. During the October 2020 Board hearing, the Veteran testified that after recovering from her knee replacement, her knee stability improved, but she still had some symptoms of pain and weakness. The Veteran has not received a VA examination since the February 2018 knee replacement surgery. Accordingly, the issue of entitlement to a rating in excess of 30 percent on or after April 1, 2019, is remanded in order to provide the Veteran with a new VA examination to determine the appropriate rating for her residuals of a right knee replacement. Updated treatment records should also be obtained. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated her right knee disability. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for a VA examination to determine the current severity of her service-connected residuals of a right knee replacement. The claims file must be reviewed by the examiner. All indicated testing must be conducted, and all pertinent symptomatology must be reported. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.