Citation Nr: 21032231 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-17 253 DATE: May 26, 2021 ORDER Entitlement to an increased disability rating in excess of 10 percent prior to March 3, 2016 for right knee strain is denied. Entitlement to an additional disability rating of 20 percent, but no higher, is granted for right knee instability from November 16, 2011 to March 3, 2016. REMANDED Entitlement to an increased disability rating in excess of 30 percent for right knee status post total knee replacement (right knee disability) from May 1, 2017 forward, is remanded. Entitlement to an increased rating in excess of 60 percent for left knee status post arthroplasty (left knee disability) is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to March 3, 2016, the Veteran's right knee strain is not shown to have been manifested compensable limitations of flexion or extension, recurrent subluxation or lateral instability, dislocated semilunar cartilage with frequent periods of "locking," pain and effusion into the joint, genu recurvatum, or malunion of tibia or fibula and was not ankylosed. 2. From November 16, 2011 to March 3, 2016, the Veteran's right knee disability is manifested as moderate instability. CONCLUSIONS OF LAW 1. Prior to March 3, 2016, the criteria for a rating in excess of 10 percent for a right knee strain have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5259 (2020). 2. From November 16, 2011 to March 3, 2016, the criteria for an additional 20 percent rating for a right knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to July 1983. These matters come before the Board of Veterans' Appeals (Board) from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2019 Board hearing. The claims file contains a copy of the hearing transcript. Increased Disability Ratings of the Musculoskeletal System The Veteran's asserts his service-connected right knee strain warrants a rating in excess of 10 percent prior to March 3, 2016. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). 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 enervation, or other pathology, or it 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202, 206-8 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The RO awarded the Veteran a 100 percent disability rating for a right total knee replacement, effective from March 3, 3016 to May 7, 2017. Thus, the period before the right total knee replacement and the period after this right total knee replacement one-year recovery period are before the Board. The Veteran's left knee claim concerns the period after a left total knee replacement one-year recovery period. Disabilities of the knee and leg are generally rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. During the period under consideration, the RO rated the Veteran's right knee stain under Diagnostic Code 5259, which applies when there is removal of semilunar cartilage. The Board assesses the Veteran's service-connected right knee strain under all applicable Diagnostic Codes. Diagnostic Code 5003 (degenerative arthritis) evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a. If limitation of motion is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. Id. Prior to February 7, 2021, under Diagnostic Code 5257 for recurrent subluxation or lateral instability, a 10 percent rating was warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating was warranted for evidence showing that the recurrent subluxation or lateral instability can be characterized as moderate; and a 30 percent rating was warranted for recurrent subluxation or lateral instability which can be characterized as severe. The rating criteria pertaining to Diagnostic Code 5257 were revised effective February 7, 2021. A 10 percent rating is assigned 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 rating is assigned 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; and a 30 percent rating is assigned 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. Under Diagnostic Code 5260 for limitation of flexion, a noncompensable rating is assigned for flexion limited to 60 degrees; a 10 percent rating is assigned for flexion limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees; and a 30 percent rating is assigned for flexion is limited to 15 degrees. Under Diagnostic Code 5261 for limitation of extension, a noncompensable rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 20 degrees; a 30 percent rating is assigned for extension is limited to 20 degrees; a 40 percent rating is assigned for extension is limited to 30 degrees; and a 50 percent rating is assigned for extension is limited to 15 degrees. Separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5256 pertains to ratings for ankylosis of a knee. Diagnostic Code 5262 applies to ratings for impairment of the tibia and fibula. Diagnostic Code 5263 applies to rating genu recurvatum. The rating criteria pertaining to Diagnostic Code 5262 were revised effective February 7, 2021. However, as those Codes are not applicable in this matter, and the February 7, 2021 effective revision does not require further discussion. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that under 38 C.F.R. § 4.71, a separate evaluation may be assigned for meniscal problems under Diagnostic Codes 5258 or 5259, even when ratings are in effect under Diagnostic Codes 5257 and 5261. The Board must also consider functional impairment with respect to the baseline range of motion (ROM) noted during clinical evaluation. English v. Wilkie, 30 Vet. App. 347 (2018). Diagnostic Code 5055 pertains to prosthetic replacement of a knee joint. Upon such, 100 percent rating is in effect for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. The rating criteria pertaining to Diagnostic Code 5055 was revised effective February 7, 2021. A 100 percent rating is in effect for 4 months following implantation of prosthesis or resurfacing. Then, 60 percent rating is for application when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, rating is by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum evaluation for residuals of a total replacement is 30 percent. Diagnostic Code 5258 provides a maximum 20 percent rating when there is dislocated semilunar cartilage with frequent periods of "locking," pain and effusion into the joint. Diagnostic Code 5259 provides a maximum 10 percent rating for removal of symptomatic semilunar cartilage Evidence and Analysis The RO received the Veteran's claim for entitlement to a TDIU on November 16, 2012 and interpreted it as a claim for increased ratings for all service-connected disabilities. At that time, the right knee disability had been rated as 10 percent disabling under Diagnostic Code 5259 for meniscal damage and pain, effective from October 2010. Therefore, the Board will consider relevant evidence of an increase in disability up to one year earlier or November 15, 2011. The Veteran and his spouse had previously submitted statements noting that the Veteran's right knee "goes out" frequently. Right knee symptoms included pain, swelling, and loss of balance. The Veteran also noted that he fell a great deal. Additionally, the Veteran reported that his right knee strain limits activities with his children, showering, biking, and shopping. In June 2012, the Veteran submitted another lay statement. In pertinent part, he noted that both of his legs had worsened in severity and he reported instability, falling, and "giving way". In August 27, 2012, the Veteran underwent a VA right knee examination. A clinician reviewed the claims file; considered the Veteran's accounts of his medical history; and conducted an appropriate evaluation. The Veteran endorsed persistent right knee pain, without flare-ups. The Veteran had 120 degrees in flexion without pain and zero degrees of extension without pain. The Veteran was capable of repetitive-use testing (of at least three repetitions) without additional loss in ranges of motion. Upon repetitive use, the clinician reported incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing. The clinician indicated that there was no evidence of tenderness or pain to palpation of the joints line and associated tissues. The Veteran retained 5/5 (normal) right knee strength. The clinician indicated that the Veteran did not have joint instability, recurrent patellar subluxation/dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or acquired traumatic genu recurvatum. The clinician did report that the Veteran had sustained a right meniscal tear and subsequent meniscectomy in September 2010. The clinician indicated that there were no frequent episodes of joint locking, join pain, or joint effusion. The clinician did note that residuals included the knee "giving out" and a few falls. The Veteran reported that he used a cane on a constant basis. X-ray imaging did not disclose the presence of degenerative/traumatic right knee arthritis or right patella subluxation. The clinician indicated functional impact upon the Veteran's ability to work, namely limitation on prolonged walking, standing, or traversing stairs. The Veteran reported that he has not been employed since 2008; prior to this period of unemployment, the Veteran had worked as a cook and as a night-time hotel manager. In April 2013, the Veteran underwent a VA right knee examination. The Veteran reported right knee pain and degenerative joint disease (DJD). The Veteran reported flare-ups, described as difficulty ambulating, standing, and traversing stairs. The Veteran had 100 degrees in flexion with pain (at 80 degrees) and zero degrees of extension without pain. The Veteran was capable of repetitive-use testing (of at least three repetitions) without additional loss in ranges of motion. Upon repetitive use, the clinician reported less movement than normal, incoordination, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight bearing. The clinician indicated that there was no evidence of tenderness or pain to palpation of the joint line and associated tissues. The Veteran had 5/5 (normal) right knee strength. The clinician indicated that the Veteran did not have joint instability, recurrent patellar subluxation/dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or acquired traumatic genu recurvatum. The clinician did report that the Veteran had sustained a right meniscal tear and subsequent meniscectomy in September 2010. The clinician indicated that there were no frequent episodes of joint locking, join pain, or joint effusion. The Veteran reported that he used a brace constantly and crutches regularly. X-ray imaging did disclose the presence of degenerative/traumatic right knee arthritis; however, x-ray imaging did not disclose the presence of right patella subluxation. Opining as the functional impact on the Veteran's ability to work, the clinician indicated problems with lifting and carrying and pain with prolonged standing walking, standing, and traversing stairs. The clinician noted resulting work problems of increased tardiness and increased absenteeism; however, the clinician opined that the Veteran could be assigned different work duties to mitigate these resulting work problems. This disability moderately impacted the usual activity of chores and shopping; it severely impacted the usual activity of exercise; and it mildly impacted the usual activities of traveling and driving. In March 2014, VA received 12 pages of records from Ergo S., a private rehabilitation facility. A review of these records shows that the Veteran engaged in a physical therapist's (PT) March 2014 evaluation process. The PT wrote that based upon her Ergo modelling, the Veteran is incapable of sustaining an 8-hour day of sedentary work due to fatigue. This therapist extrapolated this from changes in heart rate, "performance reports" which disclose pain in the knees and back, and (lastly) observed movements. The Board acknowledges this evaluation but assigns diminished probative weight to it. This therapist noted observed movements; however, a review of these pages fails to disclose extensive findings specific to the clinical status of the Veteran's right knee strain. Likewise, the notation concerning the validity of the Ergo platform and a reference to an Alabama study published in 1994 does not address the specificities of the Veteran's clinical status or history. See Sklar v. Brown, 5 Vet. App, 140 (2003) In a June 2014 letter, Dr. H., a VA neurologist, wrote that the Veteran has degenerative joint disease in his knees and back. Dr. H. indicated that the VA orthopedic clinic treats the Veteran. The Veteran reported continued severe pain, and the physician noted that the condition was chronic and expected to continue. Dr. H. did not include any clinical records with this letter. Consequently, Dr. H. has not presented any clinical data to support the conclusions reached. As such, the Board finds Dr. H.'s letter to warrant diminished probative weight. Sklar, 5 Vet. App, 140. In July 2014, the Veteran's spouse submitted another lay statement. In pertinent part, she reported that the Veteran takes pain medication, "pitches over and falls," and experiences leg swelling. She also expressed her worry about leaving the Veteran alone because of his painful knees and potential for falling. In his March 2016 substantive appeal (VA Form 9), the Veteran stated that his right knee was worse than that contemplated by a 10 percent rating and he had undergone a right knee replacement. The Veteran also noted that his right knee strain impacted his ability to obtain and maintain employment. At the March 2019 Board hearing, the Veteran reiterated his earlier points concerning the severity and painful symptoms of his right knee during the period under consideration. In March 2021, the Veteran's representative submitted a brief that restated the contentions and that every benefit of doubt should be afforded to the Veteran in light of VA's policy. The Veteran (and his spouse and representative) believes that his right knee strain warranted a rating in excess of 10 percent prior to March 3, 2016. The Veteran is competent to report discernable symptoms of right knee pain, swelling and instability. The Board has considered the Veteran lay statements and hearing testimony carefully including placing weight on the reports of "giving out" and falls. 38 C.F.R. § 3.159(a)(2). Prior to March 3, 2016, the RO assigned a 10 percent rating to the Veteran's right knee strain under Diagnostic Code 5259. This 10 percent rating is the maximum rating available for removal of symptomatic semilunar cartilage. As reported above, neither the August 2012 VA clinician nor the April 2013 VA clinician indicated there was objective evidence of frequent periods of "locking," pain and effusion into the right knee joint. As such a higher rating under Diagnostic Code 5258 is not for application. A 10 percent rating is the maximum rating available for pain without a showing of functional limitations. The Board has discussed the pertinent evidence above. No examination during the time frame under consideration found limitations of flexion or extension that would be compensable under Diagnostic Codes 5260 or 5261 criteria. Likewise, no examination found ankylosis, genu recurvatum, and/or tibia or fibula impairment. Consequently, separate compensable ratings under Diagnostic Codes 5256, 5260, 5261, 5262, or 5263 are not warranted. However, the Board considered the credible lay evidence of the knee "giving out" causing falls and use of a support device, and finds that the August 27, 2012 VA right knee examination report contains an inherent contradiction. Upon repetitive use, the clinician reported incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing. Having indicated such, the clinician indicated that the Veteran did not have clinically observed instability. As already delineated, revised (as of February 7, 201) Diagnostic Code 5257 provides 10 percent rating 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. However, the rating criteria prior to the revision provided for a rating of 10 percent for mild and 20 percent for moderate instability. Since the period in question is prior to the change and since the Veteran is entitled to a rating either under the old or new criteria, whichever is more favorable, the Board will assign a 20 percent rating, effective one year prior to the date of claim or November 16, 2011. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the minimal compensable rating for the right knee is already assigned, and the analysis must turn to whether the evidence reasonably shows that functional loss warrants a rating in excess of 10 percent. The April 2013 VA clinician indicated that less movement than normal, incoordination, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight bearing caused functional loss over a period of time. As already noted, the April 2013 clinician found that the Veteran had 100 degrees in flexion with pain (at 80 degrees) and zero degrees of extension without pain. The Veteran was capable of repetitive-use testing (of at least three repetitions) without additional loss in ranges of motion. Indeed, the Veteran endorsed flare-ups as difficulty ambulating, standing, and traversing stairs; however, the clinician did not indicate that flare-ups resulted in any additional limitation in ranges of motion. While the Veteran endorses right knee pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but of itself does not constitute functional loss. Saunders, 886 F. 3d 1356. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," to constitute functional loss warranting an increased rating. Id. at 43; see 38 C.F.R. § 4.40. The Board does not question that the Veteran's right knee strain did result in functional limitations that the Veteran endorsed (problems with lifting and carrying and pain with prolonged standing walking, standing, and traversing stairs). These limitations are contemplated by the criteria for the 10 percent rating assigned. The Board also finds that the Veteran's right knee symptoms and impairment shown do not include any that are outside of the schedular rating criteria. However, the Board also finds the Veteran's lay accounts of his discernable symptoms to be internally consistent, believable, and consistent with evidence which discloses right knee instability that comports with that delineated under Diagnostic 5757. Caluza v. Brown, 7 Vet. App. 498, 512 (1995). Consequently, affording the benefit of doubt to the Veteran, the Board finds that the Veteran warrants an additional 20 percent rating for moderate recurrent instability under Diagnostic Code 5757 from November 16, 2011. Consequently, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right knee strain prior to March 3, 2016 and supports a separate additional rating of 20 percent, but no higher, from November 16, 2011 to March 3, 2016. REASONS FOR REMAND Although the Board regrets an additional delay, a remand is necessary to ensure that due process is followed and that there is a full record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5102; 38 C.F.R. § 3.159. Entitlement to an increased disability rating in excess of 30 percent for residuals of right knee replacement, from May 1, 2017 forward Entitlement to an increased rating in excess of 60 percent for left knee residuals Following the issuance of the April 2016 statement of the case (SOC), the RO continued to develop evidence pertinent to the two claims noted above. Specifically, the RO obtained a VA examination and thousands of pages of VA treatment records and progress notes after the issuance of the SOC. To date, the RO has not sent a supplemental statement of the case (SSOC) to either the Veteran or his representative, in order to provide the opportunity to respond to the new medical evidence. Therefore, the appropriate Board action is to remand these two claims to the RO for issuance of an SSOC. See 38 C.F.R. § 19.37(b). Entitlement to a TDIU Even though the RO issued two SSOCs on entitlement to a TDIU, the Veteran's claim for such is intrinsically intertwined with the two claims on appeal. See Smith (Daniel) v. Gober, 236 F. 3d 1370, 1373 (Fed, Cir, 2001) (where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, a thorough consideration of this issue must be deferred pending the issuance of an SSOC addressing the three claims articulated above. The matters are REMANDED for the following actions: 1. Provide the Veteran and his representative an SSOC on the two claims identified above. The SSOC must contain notice of all relevant actions taken, to include a summary of the evidence and applicable laws and regulations considered pertinent to the two issues currently on appeal. The Board herein intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this remand is to ensure compliance with due process requirements. 2. Upon completion of the above-directed tasks, adjudicate the Veteran's claim for entitlement to a TDIU. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.