Citation Nr: 21029522 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-10 996 DATE: May 13, 2021 ORDER Entitlement to an increased evaluation in excess of 10 percent for the Veteran's service-connected left knee disability, to include degenerative arthritis, for the period prior to April 21, 2015 is denied. Entitlement to an increased evaluation in excess of 10 percent for the Veteran's service-connected left knee disability, to include internal derangement, for the period prior to April 21, 2015 is denied. Entitlement to an increased evaluation in excess of 30 percent for service-connected status post left knee replacement from June 1, 2016 is denied. REMANDED Entitlement to service connection for a right knee disability, to include degenerative arthritis, as secondary to the Veteran's service-connected left knee disability, is remanded. FINDINGS OF FACT 1. Prior to April 21, 2015, the Veteran's service-connected left knee disability resulted in loss of flexion to no less than 120 degrees with pain beginning at 100 degrees and no additional loss on repetitive use testing. 2. Prior to April 21, 2015, the Veteran's service-connected left knee disability resulted in no objective instability or subluxation but periodic sharp pain that causes his knee to buckle. 3. The Veteran has no residuals of his April 2015 left knee replacement. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased evaluation in excess of 10 percent for the Veteran's service-connected left knee disability, to include degenerative arthritis, for the period prior to April 21, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for entitlement to an increased evaluation in excess of 10 percent for the Veteran's service-connected left knee disability, to include internal derangement, for the period prior to April 21, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for entitlement to an increased evaluation in excess of 30 percent for service-connected status post left knee replacement from June 1, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in January 2015; a transcript of that hearing is of record. In September 2015, and most recently in May 2020, the Board remanded the Veteran's claim for further development. The claim has since been returned to the Board for further appellate action. The Board notes that in November 2020 the AOJ scheduled the Veteran for a new VA examination of his knees; however, the Veteran declined to attend the examination. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Thus, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 1. Entitlement to an increased evaluation in excess of 10 percent for the Veteran's service-connected left knee disability, to include degenerative arthritis, for the period prior to April 21, 2015 The Veteran currently has a 10 percent rating for left knee degenerative arthritis for the period prior to April 21, 2015 under Diagnostic Code 5010-5260. Under Diagnostic Code 5010, for ratings of traumatic arthritis, an evaluation in excess of 10 percent requires x-ray evidence of involvement for arthritis of 2 or more major or minor joints or joint groups with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5260 applies to limitation of flexion of the leg. Under Diagnostic Code 5260, 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. While portions of the Rating Schedule addressing the musculoskeletal system recently were revised effective February 7, 2021, DC 5260 was not changed. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). A November 2012 VA treatment record indicates that the Veteran had range of motion in his knees from 0 to 120 degrees bilaterally. In January 2013 he underwent a VA examination. Range of motion testing showed the Veteran to have left knee flexion to 130 degrees with pain beginning at 110 degrees. Left knee extension was normal with no objective evidence of painful motion. There was no additional functional loss or loss of range of motion on repetitive use testing. The examination report indicates that the Veteran denied having flare-ups that affect his functioning. The Veteran was afforded another VA examination in June 2014. Range of motion testing at that examination showed the Veteran to have left knee flexion to 120 degrees with pain beginning at 100 degrees. Left knee extension was normal with no objective evidence of painful motion. There was no additional functional loss or loss of range of motion on repetitive use testing. The Veteran reported A December 2014 VA treatment record indicates that the Veteran had range of motion in his knees from 0 to 120 degrees bilaterally. Thus, the range of motion testing of record for the period on appeal prior to April 21, 2015 does not support that a rating in excess of 10 percent is warranted. For a higher rating under Diagnostic Code 5260, flexion must be limited to at least 30 degrees. Testing consistently has shown the Veteran had much greater range of flexion. The Board acknowledges the Veteran's statement at his January 2015 Board hearing that he feels his range of motion is less when standing than when laying on his back, as testing was conducted at his VA examination. However, there is no even lay evidence suggesting that the Veteran's flexion is limited to 30 degrees or less of flexion, which is considerable loss of range of motion. The Board finds that a preponderance of the evidence is against finding that the criteria for a rating in excess of 10 percent is met, even with consideration of the DeLuca criteria. The Board further notes that it is the Veteran's painful motion in his left knee that the current 10 percent rating grated by the AOJ is based on. The Board finds that even considering the Veteran's lay reports, the Veteran's left knee condition did not result in limitation of motion more nearly approximating flexion limited to 30 degrees The Board has also considered the other diagnostic codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Board notes that the Veteran is already separately rated under Diagnostic Code 5257. The Board further finds that no other diagnostic code is applicable. There is no evidence of limitation of extension to warrant a separate evaluation nor is there evidence of ankylosis or other disabilities to warrant ratings under different diagnostic codes. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee degenerative arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased evaluation in excess of 10 percent for the Veteran's service-connected left knee disability, to include internal derangement, for the period prior to April 21, 2015 The Veteran currently has a 10 percent rating for left knee internal derangement for the period prior to October 14, 2016 under Diagnostic Code 5257. The Veteran's rating under Diagnostic Code 5257 was discontinued in an October 2016 rating decision that found it was clear and unmistakable error not to have discontinued as of April 21, 2015 when the Veteran was granted a rating for left knee replacement under Diagnostic Code 5055. The Board agrees that a rating under both diagnostic codes constitutes impermissible pyramiding. See 38 C.F.R. § 4.14. Therefore, only entitlement to a rating in excess of 10 percent prior to April 21, 2015 is at issue. 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. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Finally while the Rating Schedule addressing the musculoskeletal system recently were revised effective February 7, 2021, and DC 5257 was change, the Board notes that the period on appeal in this particular case is limited to the period prior to April 21, 2015 which is before the effective date of the changes. As such, the revisions to the DC do not apply. On VA examination in January 2013 and June 2014, joint stability testing was normal and no evidence or history of recurrent patellar subluxation was noted. At his January 2015 Board hearing, the Veteran testified that every couple weeks he'll have an episode where it feels like a spike is driving into his knee and he falls down unless he can hold something. He did not otherwise testify to experiencing instability or subluxation in his left knee. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee internal derangement. The Board has carefully considered the Veteran's lay testimony. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the Veteran does not have constant instability or subluxation, but rather has episodes of sharp pain that result in his knee buckling. The Board finds that considering the nature and frequency of the Veteran's reported symptoms, his condition does not more nearly approximate moderate recurrent subluxation or lateral instability. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee internal derangement under Diagnostic Code 5257. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an increased evaluation in excess of 30 percent for service-connected status post left knee replacement from June 1, 2016 The Veteran currently has a 30 percent rating for status post left total knee replacement effective June 1, 2016 under Diagnostic Code 5055. Under Diagnostic Code 5055 as applicable at the time of the Veteran's April 2015 left knee replacement surgery, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. Thereafter, a minimum rating of 30 percent is warranted for a knee replacement with intermittent degrees of residual weakness, pain, or limitation of motion, to be rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. A 60 percent rating is assignable for a knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Under the new rating criteria, DC 5055 provides a 100 percent rating for the four months following implantation of a knee prosthesis for a service-connected knee disability. Thereafter, the rating criteria remains the same with the exception that a separate evaluation for resurfacing after the conclusion of the 100 percent evaluation period may be warranted. Here, there is no evidence the Veteran's right knee has undergone resurfacing during the appeal period. Thus, as it pertains to this specific Veteran, the old and new rating criteria are the same. In March 2016 the Veteran underwent a VA knee examination. He reported no pain or swelling in his left knee. He reported having no limitations as a result of his left knee. Range of motion testing showed extension to 0 degrees and flexion to 135 degrees with no additional loss noted on repetitive use testing. The examiner indicated the Veteran to have no residuals of his knee replacement surgery. Neither subsequent VA treatment records or any lay evidence, including statements by the Veteran, suggest any residuals of the Veteran's left knee replacement surgery. Based on the forgoing, the Board finds that a preponderance of the evidence is against finding that the Veteran's status post left knee replacement warrants a rating in excess of 30 percent. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability, to include degenerative arthritis as secondary to the Veteran's service-connected left knee disability, is remanded. In May 2020, the Board remanded to obtain a new VA opinion as to the etiology of the Veteran's right knee disability. A VA opinion was obtained in December 2020. The VA reviewer stated as part of the rationale for his opinion that "there is no reference to a gait disturbance noted on exam, and caused by problems in the left knee which would lead to arthritis problems in the right knee." However, the Board notes that on VA examination in June 2014, the examiner stated that the Veteran was observed to limp, favoring the left knee during ambulation, which the Veteran attributed to left knee pain. At his January 2015 Board hearing the Veteran testified that he could feel that he had shifted his gait and weight to the right to compensate for his left knee problems. The Board finds that an additional VA opinion should be obtained that considers the evidence of abnormal gait. The matters are REMANDED for the following action: Obtain an addendum VA opinion from the December 2020 VA reviewer, or if unavailable, another suitably qualified examiner. A new VA examination is not required. The reviewer should opine as to the following: (a.) Whether it is at least as likely as not that the Veteran's right knee condition was due to or otherwise causally related to the Veteran's service-connected left knee disability. (b.) Whether it is at least as likely as not that the Veteran's right knee condition was aggravated by the Veteran's service-connected left knee disability. A full rationale must be provided for all opinions offered. Specifically, the reviewer should discuss the Veteran's January 2015 Board hearing testimony regarding his shifting his weight and gait to compensate for his left knee disability and the June 2014 VA examination note that the Veteran's gait involved a limp favoring his left knee. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.