Citation Nr: 21032397 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-36 006 DATE: May 26, 2021 ORDER Entitlement to an initial rating higher than 30 percent for a left knee disability from June 1, 2015, forward is denied. FINDING OF FACT On and after June 1, 2015, the Veteran's left knee disability, status post total knee replacement surgery, manifests in "intermediate" degrees of residual weakness, pain, and limitation of motion. However, his left knee disability does not manifest in "severe" painful motion or "severe" weakness. CONCLUSION OF LAW From June 1, 2015 to the present, the criteria have not been met for a rating greater than 30 percent for a left knee disability, status post total knee replacement. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to February 1975 and from March 1975 to February 1979 This matter was most recently before the Board in February 2019. At that time, the Board remanded the claim to have the Agency of Original Jurisdiction (AOJ) schedule the Veteran for a VA examination to determine the current severity of his left knee disability. VA examined the Veteran in October 2019. See October 2019 VA Knee and Lower Leg Disability Benefits Questionnaire (DBQ). From June 1, 2015 to the present, the Veteran's left knee disability has been assigned a 30 percent rating pursuant to Diagnostic Code 5055 (knee replacement prosthesis). 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055. From June 1, 2105 to the present, the AOJ has assigned the minimum 30 percent rating for the left knee beginning one year after the Veteran's total knee replacement surgery under DC 5055 (knee replacement prosthesis). The Veteran seeks a rating higher than 30 percent. For prosthetic replacement of the knee joint, Diagnostic Code 5055 provides for assignment of a 100 percent rating for one year following the implantation of the prosthesis. Thereafter, a 60 percent rating is warranted if there are chronic residuals consisting of "severe" painful motion or "severe" weakness in the affected extremity. With "intermediate" degrees of residual weakness, pain, or limitation of motion, the disability will be rated by analogy to Diagnostic Codes 5256, 5261 or 5262, with a minimum rating of at least 30 percent. Id. In Tedesco v. Wilkie, 31 Vet. App. 360, 365-66 (2019), the United States Court of Appeals for Veterans Claims (Court) held that "severe" painful motion and limitation of motion are distinct concepts, and thus limitation of motion is not required for a 60 percent rating under Diagnostic Code 5055. However, the Court added that limitation of motion may be considered as a factor in evaluating painful motion. Id. Upon review, from June 1, 2015 to the present, a rating in excess of 30 percent for status-post total left knee arthroplasty (TKA) surgery (left knee disability) under DC 5055 is denied. 38 C.F.R. § 4.7. In making this determination, the Board has reviewed both the lay and medical evidence of record. Regardless, the probative lay and medical evidence of evidence of record does not demonstrate chronic left knee residuals consisting of "severe" painful motion or "severe" weakness to warrant a 60 percent rating under DC 5055. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. Specifically, the following evidence weighs against a rating of 60 percent under Diagnostic Code 5055 on and after June 1, 2015 for the service-connected left knee disability. The evidence does not demonstrate "severe" weakness or "severe" painful motion necessary for a higher 60 percent rating under Diagnostic Code 5055. To this end, while October 2014 and July 2016 VA examination reports revealed that the Veteran regularly used a brace to ambulate, these examination reports, as well as an October 2019 examination report, collectively documented 5/5 strength in the left knee and no evidence of muscle atrophy, or recurrent subluxation and instability. October 2014 and July 2016 VA examiners also concluded that the Veteran's left knee revealed intermediate (italics added for emphasis) degree of residual weakness. These same examiners also collectively noted that the Veteran had pain on weight bearing of the left knee and on palpation, however, these reports, as well as an October 2019 VA examination report, disclosed that there was no functional loss of the left knee as a result of pain. In addition, these same VA examination reports revealed left knee extension and flexion that was limited, at most, to 10 and 85 degrees, respectively. These reports reflect that the Veteran was able to perform repetitive-use testing of the left knee joint with at least three (3) repetitions and without functional loss or loss of range of motion. VA treatment records for the period on appeal do contain any objective findings that would indicate severe weakness of the left knee, and are consistent with those found during the above-cited VA examinations. In summary, the above evidence does not demonstrate the "severe" weakness or "severe" painful motion necessary for a higher 60 percent rating under Diagnostic Code 5055 for the service-connected left knee disability for the period from June 1, 2015, and the claim is denied. See 38 C.F.R. § 4.71a. In addition, the evidence of record does not contain evidence of left knee ankylosis (Diagnostic Code 5256), limitation of left knee extension to 30 degrees (Diagnostic Code 5261), or nonunion of the left tibia and fibula with loose motion (Diagnostic Code 5262). Thus, higher ratings for the service-connected left knee disability for the period from June 1, 2015 under these Diagnostic Codes is denied. On a side note, the Board is cognizant of the recent changes to the Rating Schedule that addresses the musculoskeletal system and muscle injuries, which are effective February 7, 2021. One such change impacts Diagnostic Code 5055 for a knee replacement or prosthesis. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76461 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a ). Regardless, 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); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The amendments above have established the effective date of February 7, 2021, without a provision for retroactive application. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Thus, the Board will continue to apply the old rating criteria for Diagnostic Code 5055 to rating periods prior to February 7, 2021 but can apply whichever set of criteria is more favorable to periods after February 7, 2021, if the claim was pending prior to this date. Id. In the present case, there is no clinical or lay evidence of record in the claims file dated after February 7, 2021 pertaining to the left knee. Thus, the February 7, 2021 amendments to Diagnostic Code 5055 for a knee replacement or prosthesis do not apply here. The Board finds that the Veteran's own report of symptomatology is credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for higher evaluations under any of the potentially applicable criteria. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability ratings, his complaints along with the medical findings do not meet the schedular requirements for a higher rating than now assigned, as explained and discussed above. Lastly, the Board acknowledges that the January 2020 VA examiner described a left anterior knee scar that is the result of his total left knee replacement. Under certain circumstances, assigning a separate rating for a scar would not violate the rule against pyramiding. Esteban v. Brown, 6 Vet. App. 259, 26162 (1994). According to the October 2019 examiner, the left anterior knee scar was not shown to be at least 39 square centimeters, painful and/or unstable. For this reason, the relevant diagnostic criteria do not provide for a separate compensable rating for the manifestation of the Veteran's left knee scar. 38 C.F.R. § 4.118. Accordingly, from June 1, 2015 to the present, the preponderance of the evidence is against an increased rating in excess of 30 percent under Diagnostic Code 5055 for the left knee disability. 38 C.F.R. § 4.3. This claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.