Citation Nr: 21029795 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-00 903 DATE: May 17, 2021 ORDER A rating in excess of 10 percent for right knee degenerative arthritis prior to April 7, 2014, is denied. A rating in excess of 10 percent for left knee degenerative arthritis prior to May 5, 2014, is denied. An initial, separate 30 percent rating is granted for right knee lateral tibial subluxation (right knee instability) prior to April 7, 2014, subject to the law and regulations governing the award of monetary benefits. An initial, separate 30 percent rating is granted for left knee lateral tibial subluxation (left knee instability) prior to May 5, 2014, subject to the law and regulations governing the award of monetary benefits. A 60 percent rating for right knee degenerative arthritis, status post knee replacement, from June 1, 2015, is granted, subject to the law and regulations governing the award of monetary benefits. A 60 percent rating for left knee degenerative arthritis, status post knee replacement, from July 1, 2015, is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to April 7, 2014, the Veteran's right knee disability was manifested by degenerative arthritis; his range of motion was limited at most to 120 degrees of flexion, with extension to 0 (zero) degrees; he did not have effusion or ankylosis, and there was no x-ray evidence of arthritis in two or more major or minor joints other than his left knee. 2. Prior to May 5, 2014, the Veteran's left knee disability was manifested by degenerative arthritis; his range of motion was limited at most to 124 degrees of flexion, with extension to 0 (zero) degrees; he did not have effusion or ankylosis, and there was no x-ray evidence of arthritis in two or more major or minor joints other than his right knee. 3. For the rating period prior to April 7, 2014, the Veteran's right knee instability was productive of severe lateral tibial subluxation. 4. For the rating period prior to May 5, 2014, the Veteran's left knee instability was productive of severe lateral tibial subluxation. 5. The Veteran underwent a right total knee replacement in April 2014. 6. From June 1, 2015, the Veteran's right knee disability was manifested by chronic residuals consisting of severe painful motion. 7. The Veteran underwent a left total knee replacement in May 2014. 8. From July 1, 2015, the Veteran's left knee disability was manifested by chronic residuals consisting of severe painful motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative arthritis of the right knee prior to April 7, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5003, 5260, 5261. 2. The criteria for a rating in excess of 10 percent for degenerative arthritis of the left knee prior to May 5, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5003, 5260, 5261. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 30 percent rating for severe subluxation of the right knee prior to April 7, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5258, 5259, 5260, 5261. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 30 percent rating for severe subluxation of the left knee prior to May 5, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5258, 5259, 5260, 5261. 5. Resolving reasonable doubt in the Veteran's favor, the criteria for a 60 percent rating for degenerative arthritis of the right knee, status post knee replacement, from June 1, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5055. 6. Resolving reasonable doubt in the Veteran's favor, the criteria for a 60 percent rating for degenerative arthritis of the left knee, status post knee replacement, from July 1, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1963 to February 1985, and from January 1990 to June 1992. His decorations include the National Defense Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The issues on appeal were previously before the Board in May 2018, when the matter was remanded for additional development. In August 2019, while the appeal was pending, the RO granted a 100 percent rating for the right knee based on knee replacement surgery, effective April 7, 2014, with a 30 percent rating effective from June 1, 2015. The RO also granted a 100 percent rating for the left knee based on knee replacement surgery, effective May 5, 2014, with a 30 percent rating effective from July 1, 2015. Following the May 2018 Board remand, and after taking further action, the AOJ confirmed and continued the prior ratings and returned the case to the Board. In September 2019, the Board again remanded both issues to the AOJ after finding that the AOJ had not substantially complied with the Board's May 2018 remand directives. It ordered the AOJ to contact the appellant and request that he obtain and provide to VA any additional private treatment records that might be pertinent to the issues on appeal. In December 2019, the AOJ sent the appellant a letter specifying that it had not obtained records from any recent providers and requested that he provide records from any other private care providers that might be pertinent to the issues on appeal. To date, the appellant has not responded to that request. The Board finds that there has been substantial compliance with the Board's September 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Higher Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (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 diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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 with repeated use. 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). Lay testimony is competent when it concerns the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim. Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2). As a preliminary matter, the Board notes that, while this appeal was pending, VA published a final rule amending its regulations on musculoskeletal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 85523, 85524 (Dec. 29, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. However, the changes are not applicable to the period prior to the knee replacement surgeries in 2014. At the outset, the Board notes that the Veteran's bilateral knee disabilities prior to bilateral knee replacement were rated 10 percent disabling, each, under DC 5010 based on evidence of degenerative arthritis and limitation of motion of the joint. During the appeal period, A 100 percent rating pursuant to 38 C.F.R. § 4.71a, DC 5055 was assigned effective April 7, 2014 to June 1, 2015 for the right knee, and a 100 percent rating was assigned for the left knee effective May 5, 2014 to July 1, 2015 as a result of bilateral total knee replacements. Since the 100 percent evaluation assigned for these periods constitute the maximum evaluation available, those periods are not on appeal. Following these periods of maximum evaluations, effective June 1, 2015 for the right knee, and July 1, 2015 for the left knee, 30 percent disability ratings were assigned for both knees under DC 5055, the minimum rating warranted under DC 5055 for knee replacement. The Veteran seeks higher ratings as to both periods on appeal. Under the former criteria, DC 5010 provides that arthritis due to trauma is to be evaluated as degenerative arthritis pursuant to DC 5003. DC 5003, unchanged by the new criteria, provides that degenerative arthritis substantiated by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for X-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003. Under the new criteria, DC 5010 provides that post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with § 4.25. Limitation of flexion and extension of the knee joint are evaluated under DCs 5260 and 5261, respectively. DC 5260 and 5261 were unchanged by the recent amendments. Under DC 5260, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Under DC 5261, a noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is to 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Knee disabilities can also be rated of on the basis of recurrent subluxation or patellar instability under DC 5257. Under the previous version of DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2020). Under the amended version of DC 5257 for recurrent subluxation or instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (unrepaired, failed repair, or repaired) causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. 38 C.F.R. § 4.71a (2021). Of note, lateral instability and limitation of motion of the knee may be rated separately under DCs 5257 and 5003. VAOPGCPREC 23-97. Further, in Lyles v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that evaluation of a knee disability under the diagnostic codes for recurrent subluxation or instability; limitation of extension; or limitation of flexion does not preclude as a matter of law a separate evaluation of a meniscal disability under DC 5258 or 5259; the diagnostic codes for removal or dislocation of semilunar cartilage. 29 Vet. App. 107, 115-16 (2017). Accordingly, when evaluating a knee disability, the Board may potentially assign separate ratings for: (1) recurrent subluxation or lateral instability; (2) limitation of flexion; (3) limitation of extension; and (4) symptoms associated with the dislocation or removal of semilunar cartilage. Under the previous version of DC 5055, a 30 percent rating is warranted for knee replacement (prosthesis). A 60 percent rating is warranted for knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A maximum rating of 100 percent is warranted for one year following implantation of the prosthesis. 38 C.F.R. § 4.71a, DC 5055. In addition, ratings between 30 and 60 percent can be assigned with intermediate degrees of residual weakness, pain, or limitation of motion, rated by analogy to DCs 5256 (ankylosis), 5261 (limitation of flexion), or 5262 (impairment of the tibia and fibula). 38 C.F.R. § 4.71a, DC 5055. 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 that either of Veteran's knees had undergone resurfacing during the appeal period. Thus, as it pertains to this specific Veteran, the old and new rating criteria are the same. As noted, separate evaluations may be assigned for non-overlapping manifestations of knee disability. See, e.g., 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (Oct. 6, 2004) (separate ratings for limitation of flexion and extension of the knee); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703-04 (Oct. 22, 1998) (separate ratings for instability and limitation of motion); VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (Dec. 1, 1997) (to the same effect). However, the combined evaluation for the affected leg cannot exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. 1. Entitlement to an initial rating in excess of 10 percent prior to April 7, 2014 for right knee degenerative arthritis. 2. Entitlement to an initial rating in excess of 10 percent prior to May 5, 2014 for left knee degenerative arthritis. Turning to the first period, prior to April 7, 2014 for the right knee, and prior to May 5, 2014 for the left knee, the Board notes that a July 2010 examination showed range of motion from 0 to 130 degrees, chronic discomfort in both knees, and moderate degenerative changes, but there was no lateral instability, subluxation, dislocation, inflammation, or episodes of flare-ups. It was also noted that the Veteran was not using any assistive device or brace. A June 2011 private treatment record indicates that the range of motion was 0 to 120 degrees for the right knee and 0 to 124 degrees for the left knee. The examinations revealed no effusion, swelling, erythema, or tenderness to palpation. Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for bilateral degenerative arthritis prior to April 7, 2014 and May 5, 2014, respectively. As noted, the Veteran's flexion was limited at most to 120 degrees for the right knee and 124 degrees for the left knee, with full extension to 0 degrees for both knees. Further, there is no evidence that documents the Veteran would have limitation of motion of either knee to the extent necessary for a higher rating due to the effect of pain, to include during flare-ups. In pertinent part, the Veteran has not identified or presented evidence that would support such limitation. Moreover, while he reported chronic discomfort of the knees aggravated after long walking at the July 2010 VA examination, he also reported he could walk 6 to 8 blocks without stopping. The VA examiner also noted there were no episodes of flare-ups, and that there were no impairments on activities of daily living or his occupation; and that there was no functional limitation with standing or walking. Such findings are against any significant additional limitation of motion due to pain. In addition, repetitive motion testing was conducted on the VA examination to simulate the effect of repeated use over time, and there was no additional limitation of either knee. The Veteran is therefore not entitled to an increased rating based on limitation of motion of either knee, to include separate ratings under DC 5260 and 5261. As noted, the record for this period do not document he satisfies the criteria for a compensable rating for either knee under either of these Codes. The Veteran is not entitled to a 20 percent disability rating under DC 5010, as X-ray evidence of service-connected arthritis in two or more major joints of either leg, with incapacitating exacerbations, has not been demonstrated. Indeed, the Veteran was already separately service connected and rated for both knees. The Board finds, further, that a separate rating is not warranted for dislocation or removal of the semilunar cartilage under DCs 5258 and 5259, respectively, prior to April 7, 2014 and May 5, 2015, respectively. There was no effusion noted prior to bilateral knee replacement. Based on the evidence, the Board finds that a separate compensable rating under DC 5258 is not warranted in the absence of coinciding and conjunctive symptoms of both frequent episodes of locking and pain, as well as effusion into the joint. 38 C.F.R. § 4.71a; see also Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (stating that the inclusion of the conjunctive word "and" clearly indicates that all listed criteria must be demonstrated, or it would render the wording meaningless). DCs 5256, 5262, and 5263 provide ratings for ankylosis, impairment of tibia and fibula, and genu recurvatum, respectively. The medical evidence prior to April 7, 2014 and May 5, 2014 does not show that such impairments were present, and the Veteran did not contend otherwise. Therefore, a higher rating is not available under those DCs. 3. Entitlement to a separate 30 percent rating for right knee subluxation prior to April 7, 2014. 4. Entitlement to a separate 30 percent rating for left knee subluxation prior to May 5, 2014. In December 2013, prior to bilateral knee replacement surgery, a private medical assessment found that the Veteran lacked a few degrees of extension but had full flexion with pain. The examiner also found that the Veteran had end-stage arthritis with complete collapse of the medial femorotibial articulation and lateral tibial subluxation, bilaterally. Based on the foregoing, the Board resolves reasonable doubt in the Veteran's favor and finds that the preponderance of the evidence is in favor of the assignment of a separate 30 percent rating for severe subluxation, bilaterally, under the prior criteria under DC 5257. The December 2013 assessment found "complete collapse of medial femorotibial articulation and lateral tibial subluxation bilaterally." The condition was severe enough that it required bilateral knee replacement. As noted previously, lateral instability and limitation of motion of the knee may be rated separately under DCs 5257 and 5003. VAOPGCPREC 23-97. Accordingly, the Board grants a separate 30 percent rating for severe subluxation of the right knee disability prior to April 7, 2014, and the same 30 percent rating for severe subluxation of the left knee disability prior to May 5, 2014. These are the highest ratings available under DC 5257 for such impairment. Although separate ratings are warranted for lateral tibial subluxation, the Board finds that the Veteran is not entitled to a higher rating for degenerative arthritis of the knees for the period prior to bilateral knee replacement. 5. Entitlement to a 60 percent rating for right knee degenerative arthritis, status post knee replacement, from June 1, 2015. 6. Entitlement to a 60 percent rating for left knee degenerative arthritis, status post knee replacement, from July 1, 2015. Turning to the evidence of record proximate to and from June 1, 2015 and July 1, 2015, the Board notes that the Veteran was afforded a VA examination in connection with his claim in February 2019. The examiner indicated that the Veteran had bilateral knee meniscal tear and degenerative arthritis, status post knee replacement. The Veteran did not report flare-ups. He had flexion to 105 degrees and no limitation of extension in his right knee, and flexion to 100 degrees and no limitation of extension in his left knee. The examiner indicated that there was localized tenderness or pain on palpation of the joint, as the Veteran was groaning during range of motion testing, and that pain was bilateral, and caused functional loss. He was unable to perform repetitive use testing, which the examiner found to be neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner further found that it was not possible to determine, without resorting to mere speculation, to estimate loss of range of motion because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Although the Veteran reported slight improvement since the total knee replacement, he reported constant pain and stiffness, and he was required to use a cane regularly. Following bilateral knee replacement surgery, the examiner classified the residuals of those surgeries as intermediate degrees of residual weakness, pain or limitation of motion. Despite the examiner's classification of the Veteran's status, the Board finds that the bilateral total knee replacement was manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremities. In light of the above, the Board resolves reasonable doubt in the Veteran's favor and the Board finds that a 60 percent rating for right knee degenerative arthritis, beginning June 1, 2015, and a 60 percent rating for left knee degenerative arthritis, beginning July 1, 2015, is warranted based on objective evidence of chronic residuals consisting of severe painful motion of the right knee under Diagnostic Code 5055. A 60 percent rating is the highest rating available under DC 5055 following the one-year period of a 100 percent rating for the implantation of the prosthesis. Thus, to the extent applicable, the considerations of DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), do not apply. See Johnston v. Brown, 10 Vet. App. 80 (1997) (remand for consideration of functional loss of range of motion of a wrist due to pain inappropriate where rating currently assigned for limitation of motion was maximum available under the applied diagnostic code); VAOPGCPREC 36-97 (holding that consideration must be given to the extent of disability under 38 C.F.R. §§ 4.40 and 4.45 "when a Veteran has received less than the maximum evaluation" under a particular DC). The Board has considered the applicability of other rating criteria for evaluating the musculoskeletal disabilities of the knees under 38 C.F.R. § 4.71a; however, there is no basis for assigning a higher or separate compensable rating under an alternate diagnostic code such as DCs 5256, 5261, 5262 or 5263, under the prior or new rating criteria during the periods subsequent to the respective knee replacement surgeries. There is simply no evidence of ankylosis, impairment of the tibia or fibula, subluxation, instability, or genu recurvatum during these periods. John Kitlas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, Associate 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.