Citation Nr: 21032213 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-35 703 DATE: May 26, 2021 ORDER Entitlement to a rating of 60 percent disabling, but no higher, for left knee replacement/left knee meniscal tear with degenerative disease of the left femoral condyle contusion with osteoarthritis from December 10, 2013 to June 13, 2019 is granted. Entitlement to a rating in excess of 60 percent disabling for left knee replacement/left knee meniscal tear with degenerative disease of the left femoral condyle contusion with osteoarthritis and ankylosis after June 13, 2019 is denied. FINDINGS OF FACT 1. From December 10, 2013 to June 13, 2019, the Veteran's left knee disability resulted in chronic residuals consisting of severe painful motion or weakness. 2. From June 13, 2019, the Veteran is in receipt of the maximum rating allowed for his left knee disability; the amputation rule precludes that Board from assigning a rating higher than 60 percent for the knee. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 60 percent, but no higher, for a left knee disability from December 10, 2013 to June 13, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5055. 2. The criteria for a disability rating in excess of 60 percent after June 13, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1996 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in March 2018. A transcript of the hearing is in the Veteran's file. This claim was previously before the Board in December 2018. At that time the Veteran sought to have VA recognize his December 2012 surgery as a total knee replacement and assign a 100 percent evaluation for a year (until December 2013); and assign a minimum 30 percent evaluation thereafter pursuant to diagnostic code 5055. At the same time, he believed the knee rating warranted an evaluation in excess of 30 percent after December 2013. The Board granted the benefit requested insofar as it assigned a 100 percent rating to December 2013, assigned the 30 percent rating thereafter, but remanded the issue of a rating in excess of 30 percent for additional development. Thereafter, the RO increased the 30 percent evaluation to 60 percent effective from June 13, 2019. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 Entitlement to a 60 percent rating for left knee replacement/left knee meniscal tear with degenerative disease of the left femoral condyle contusion with osteoarthritis from December 10, 2013 to June 13, 2019 and in excess of 60 percent thereafter During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 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). 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. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, under DC 5055, prosthetic replacement of a knee joint is rated as 100 percent disabling for one year following implantation of the prosthesis. The one-year total rating begins after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, a 60 percent rating will be assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DCs 5256, 5260, 5261, or 5262. The minimum disability rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a. As of February 7, 2021, under the amended criteria of DC 5055, the prosthetic replacement of a knee joint is rated as 100 percent disabling for four months following implantation of the prosthesis or resurfacing. Thereafter, a 60 percent rating will be assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DCs 5256, 5260, 5261, or 5262. The minimum disability rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a. At the conclusion of the 100 percent evaluation period, the rater is to evaluate resurfacing under DCs 5256-5262 and there is no minimum evaluation for resurfacing. DC 5256 provides for a 40 percent rating for unfavorable ankylosis with knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is provided for unfavorable ankylosis with the knee in flexion between 20 degrees and 45 degrees. A 60 percent rating is provided for extremely unfavorable ankylosis with the knee in flexion at an angle of 45 degrees or more. This regulation was unchanged with the February 2021 amendments. DC 5260 provides ratings based on limitation of flexion of the leg. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. The maximum 30 percent rating is warranted for flexion limited to 15 degrees. This regulation was unchanged with the February 2021 amendments. DC 5261 provides ratings based on limitation of extension of the leg. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. The maximum 50 percent rating is warranted for extension limited to 45 degrees. This regulation was unchanged with the February 2021 amendments. Prior to the regulatory change, DC 5262 provided a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating for moderate knee or ankle disability; a 30 percent rating for marked knee or ankle disability; and a 40 percent rating for nonunion of the tibia and fibula with loose motion requiring a brace. The Board notes that terms such as 'slight,' 'moderate,' 'severe,' and 'marked' 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 as contemplated by the requirements of the law. 38 C.F.R. § 4.6. As of February 7, 2021, under the amended criteria, under DC 5262, a 40 percent rating is for nonunion of the tibia and fibula with loose motion requiring a brace. Malunion of the tibia and fibula are to be evaluated under DC 5256, 5257, or 5261 for the knee, or Medial tibial stress syndrome (MTSS), or shin splints: a non-compensable rating is afforded for a treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating for when requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating for when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating for when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. For diagnostic codes that are based on limitation of motion, VA must consider assigning a higher rating for functional loss, including functional loss due to flare-ups or the factors listed below. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). These factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. For diagnostic codes that are based on limitation of motion, pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture "more nearly approximates" the required criteria; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 262 (1994). From December 10, 2013 to June 13, 2019 As noted, the Veteran was assigned a total evaluation for a year following the December 10, 2012 surgery, and a 30 percent rating from December 10, 2013 to June 13, 2019 under Diagnostic Code 5055. Turning to the evidence of record, the Veteran was afforded a VA examination in July 2014. He reported his knee never got any better after surgery and he now had more pain. Also, he contends he was able to run prior to the surgery, but now is unable. Range of motion testing revealed flexion to 110 degrees and extension to zero degrees. Joint stability testing was normal. A September 2015 private treatment record reflects that the Veteran had a lot of pain and weakness in his knees. He had full flexion and extension of his left knee, however, there was visible muscle atrophy of the left quadricep area. The clinician noted that the findings were consistent with moderately severe chronic weakness and disability of his left knee secondary to his partial knee replacement. The weakness was permanent and despite physical therapy, there was no improvement. The Veteran was afforded another VA examination in January 2017. Range of motion testing revealed flexion to 100 degrees and extension to 10 degrees. There was no ankylosis, recurrent subluxation or lateral instability. It was noted the Veteran occasionally used a cane. A May 2018 private treatment record shows the Veteran had muscle atrophy and limited range of motion of flexion to 40 degrees and extension to -10 degrees. His knee was very tight and stiff, and he had severe pain with walking on his left knee. The clinician noted that physical therapy did not benefit him so there were no other further recommendations. He had to try to live with the severe pain with the understanding he will eventually need conversion to a total knee replacement in the future. A June 2019 VA examination, signed in August 2019, revealed left quadricep atrophy, complaints of severe pain, and at the time, the Veteran had no apparent range of motion. The examiner also noted the Veteran was able to perform repetitive use testing with at least 3 repetitions. It is unclear, how this would be possible in a setting where the Veteran failed to exhibit any range of motion. In any event, there was no joint instability. The Veteran submitted a letter from a private clinician dated in June 2020. The physician had examined the Veteran, reviewed his history, and administered x-rays. He opined that it is highly likely the Veteran has chronic residuals consisting of severe painful motion and weakness in his left knee that are a direct result of his medial unicompartmental arthoplasty surgery and that he had these issues since the December 2012 surgery. The Board finds that the preponderance of the evidence is in favor of a finding that December 10, 2013 to June 13, 2019, the Veteran's service-connected left knee unicompartmental arthoplasty residuals were manifested by severe painful motion and weakness. The findings of the VA examinations and private treatment records indicate that the Veteran experienced severe pain and weakness of the left knee. The Board also assigns probative value to the Veteran's private physician's opinion that the Veteran's left knee surgery residuals more likely than not reflect severe painful motion and weakness since 2012. The Board notes that the physician supported his opinion with a rationale and indicated a familiarity with the Veteran's medical history. Considering the evidence of severe pain and weakness, the Board resolves reasonable doubt in the Veteran's favor and finds that the 60 percent rating for severe residuals after total knee replacement surgery more closely approximates the Veteran's overall disability picture for his service-connected left knee disability for this portion of the appeal period. Accordingly, an increased rating of 60 percent is granted from December 10, 2013 to June 13, 2019 for the Veteran's service-connected left knee unicompartmental arthoplasty residuals. 60 percent is the maximum rating under Code 5055, with a 100 percent rating (the only other available higher rating under Code 5055) only warranted for the one-year period following knee replacement surgeries. Thus, a rating in excess of 60 percent under this diagnostic code for the left knee disability is denied. Furthermore, since amputation is required for any higher schedular evaluation, and this has not occurred, a rating in excess of 60 percent for this portion of the appeal period is denied. After June 13, 2019 As stated, a 60 percent evaluation is the highest rating absent an amputation. This has not occurred, and therefore, a rating in excess of 60 percent after June 2019 is not warranted. In reaching this decision, the Board notes a 60 percent rating is the maximum schedular rating allowable under Diagnostic Code 5055 after a 100 percent disability rating for one year following surgery. Additionally, a 60 percent is the maximum schedular rating allowable under DC 5056 for ankylosis. The rule against pyramiding prohibits compensating twice for the same manifestations. A rating under Diagnostic Code 5055 encompasses all identifiable residuals of post total knee replacement, including limitation of motion and functional impairment due to pain on motion. Therefore, a separate rating for ankylosis, or even limitation of flexion (Diagnostic Code 5260) and/or limitation of extension (Diagnostic Code 5261) are not appropriately assigned. In summary, from December 10, 2013 to June 13, 2019, a disability rating of 60 percent, but no higher, for a left knee disability has been demonstrated. Additionally, after June 13, 2019, a disability rating more than 60 percent for a left knee disability has not been demonstrated. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.