Citation Nr: 21032620 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-43 189 DATE: May 27, 2021 ORDER A 30 percent rating for right knee chondromalacia patella with degenerative changes is granted. A 30 percent rating for left knee chondromalacia patella is granted. REMANDED Entitlement to a rating in excess of 30 percent for right knee chondromalacia patella with degenerative changes is remanded. FINDINGS OF FACT 1. After resolving doubt in the Veteran's favor, the evidence shows her bilateral chondromalacia patella caused patellofemoral arthritis, which contributed to the need for right and left total knee replacements in 2011. 2. The weight of the evidence is against finding nonunion of the tibia and fibula, extension limited to at least 30 degrees, ankylosis, or chronic residuals of knee replacement consisting of severe painful motion or weakness on the left side. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for right knee chondromalacia patella with degenerative changes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5055. 2. The criteria for a 30 percent rating, but no higher, for left knee chondromalacia patella have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from February 1975 to February 1979 and May 1979 to May 1995. Increased Rating 1. A 30 percent rating for right knee chondromalacia patella with degenerative changes 2. A 30 percent rating for left knee chondromalacia patella Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a preliminary matter, the Board finds the evidence is at least in equipoise to demonstrate that the bilateral total knee replacement procedures from October 2011 resulted from a progression of the service-connected chondromalacia patella disabilities. The October 2011 operative report identifies the pre-operative diagnosis and cause of the surgery as bilateral tricompartmental knee osteoarthritis. In September 2015, a VA examiner opined that the total knee replacement procedures were less likely than not related to the service-connected bilateral chondromalacia patella. The examiner reasoned that there is a lack of direct anatomical contact from the patella with the rest of the knee joint structures and there is a low incidence of associated other knee joint degenerative joint arthritic changes when patellofemoral arthritis is present. The examiner elaborated that patellofemoral arthritis may develop from chondromalacia patella condition, but the degenerative process appears limited to that of the patella, not the other compartments. The examiner found the Veteran's knee arthritis was more likely due to the cumulative effects of daily wear and tear. The December 2019 VA examiner diagnosed "[c]hondromalacia patella bilateral knees with patellofemoral arthritis (part and parcel of bilateral tricompartmental knee arthritis that led to bilateral knee arthroplasty)." The examiner explained that the knee joint contains four bones femur, tibia, patella, and fibula and three compartments, the medial tibiofemoral, lateral tibiofemoral, and patellofemoral which all share a common synovial cavity. The examiner further explained that chondromalacia patella is thinning of the cartilage behind the patella, the articular cartilage primarily serves to provide a smooth surface to allow for the normal gliding motion of the joint, and cartilage loss behind the patella results in patellofemoral joint space narrowing and patellofemoral joint arthritis. The evidence shows that the Veteran required total knee replacement because of tricompartmental osteoarthritis, which included the patellofemoral compartment. Both examiners explained that chondromalacia patella can lead to patellofemoral joint arthritis, and the December 2019 examiner found that patellofemoral arthritis was part of the service-connected chondromalacia patella disabilities. There is evidence to support that the arthritis in at least one of the three compartments of the Veteran's knees was caused by her service-connected disability, and her knee arthritis led to the need for replacement surgery. The Board resolves doubt in the Veteran's favor to find that the total knee replacement procedures represented part of the Veteran's service-connected disability picture. Accordingly, Diagnostic Code 5055, for knee resurfacing or replacement, is most appropriate to rate the Veteran's disability picture. Diagnostic Code 5055 provides for a 100 percent rating for four months following implantation of prosthesis or resurfacing, a minimum 30 percent rating after total replacement, a 60 percent rating for replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity, and ratings by analogy to Diagnostic Codes 5256, 5261, or 5262 for intermediate degrees of residual weakness, pain, or limitation of motion. 38 C.F.R. § 4.71a, DC 5055. Diagnostic Code 5261 pertains to limitation of leg extension. A 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under Diagnostic Code 5262, a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Diagnostic Code 5256 addresses ankylosis of the knee and provides for a 50 percent rating for ankylosis in flexion between 20 and 45 degrees and a 60 percent rating for extremely unfavorable ankylosis in flexion at an angle of 45 or more. 38 C.F.R. § 4.71a, DC 5256. For disabilities based on limitation of motion, VA is to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (stating that "the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements"); 38 C.F.R. § 4.59. As the Board has found the Veteran's service-connected bilateral knee chondromalacia patella contributed to the need for total knee replacement in 2011, 30 percent ratings are warranted for her left and right knee disabilities. See 38 C.F.R. § 4.71a, DC 5055. However, the total knee replacement procedures occurred more than a year prior to the claim for increase, therefore, 100 percent ratings based on the 2011 procedure cannot be granted as part of this appeal. Nevertheless, the evidence shows the Veteran had a revision of the right total knee arthroplasty on September 19, 2017. Under Diagnostic Code 5055, a 100 percent rating is appropriate for four months after the procedure from September 19, 2017 to January 18, 2018. However, the Board notes the Veteran is already in receipt of a 100 percent rating and special monthly compensation at the housebound rate throughout the period on appeal, and this award is moot. The question of entitlement to a rating in excess of 30 percent for the right knee is addressed in the remand section. For the left knee, the Board finds the criteria for a rating in excess of 30 percent have not been met. See 38 C.F.R. § 4.71a, DC 5055. The June 2015 VA examiner measured full left knee extension, full strength, and observed no pain on examination. The examiner found no ankylosis and made no indication of joint instability or nonunion of the tibia and fibula. The Veteran reported having pain in the left knee prior to the 2011 replacement procedure but having no pain and good range of motion afterward. Similarly, in November 2015, a private treating provider noted that the left knee surgery continued to be a blessing for the Veteran allowing her to do many things she was unable to do before. VA treatment records focus largely on the right knee, but evaluations of the left knee do not show any less than full extension and full strength. During the December 2019 examination, the Veteran reported that her left knee will give out sometimes and causes pain every now and then but otherwise is ok. She reported functional limitations in squatting and kneeling and difficulty getting dressed. The Veteran had regular use of knee brace(s) and occasional use of a walker. The examiner measured full extension and full strength in the left knee with no pain observed on examination. The examiner found no ankylosis, no joint instability, and no impairment of the tibia and fibula. The evidence does not show extension limited to 30 degrees, nonunion of the tibia and fibula, ankylosis, or chronic residuals consisting of severe painful motion or weakness in the left knee. The evidence shows that while the left knee caused pain, the pain was not constant and not severe. The evidence also shows no significant weakness, limitation of extension, ankylosis, or impairment of the tibia and fibula in the left knee. Accordingly, a rating in excess of 30 percent is not warranted for the left knee chondromalacia patella. In reaching this conclusion, the Board finds the examinations of record adequate to rate the Veteran's left knee disability picture. The Veteran denied flare-ups, the December 2019 examiner explained that passive range of motion testing was not safe or medically advisable, and the examiners noted no pain with weight-bearing or non-weight-bearing in the left knee to necessitate additional measurements in those scenarios. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The benefit of the doubt was afforded in awarding the 30 percent rating for the left knee, but the weight of the evidence is against assigning a rating in excess of 30 percent. See 38 C.F.R. § 4.3. REASONS FOR REMAND 1. A rating in excess of 30 percent for right knee chondromalacia patella with degenerative changes is remanded. The Board finds additional information for the right knee disability would be helpful in determining the proper rating. First, the December 2019 examination showing full strength in the right knee is inconsistent with VA treatment records showing several notations of right knee strength as 4/5. Next, the Veteran reported difficulty with squatting and kneeling, and the examiner observed pain with weight-bearing on the right side. However, the examiner did not measure or estimate how pain could limit the Veteran's range of motion, particularly extension, with weight-bearing. An addendum opinion is needed. See Correia, 28 Vet. App. at 169-70. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain an addendum opinion from the December 2019 examiner. A new examination should be obtained if deemed necessary by the examiner or if the December 2019 examiner is unavailable. Otherwise, the examiner should conduct a clinical interview with the Veteran and opine as to how pain would affect the Veteran's range of motion, particularly extension, with weight-bearing. The examiner should also opine as to whether the Veteran's right knee presents with chronic residuals of the replacement and revision surgeries consisting of severe painful motion or weakness in the affected extremity. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.