Citation Nr: 21040148 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-17 033 DATE: July 2, 2021 ORDER Entitlement to a 60 percent rating for the residuals of a left total knee replacement is granted effective from October 1, 2015. REMANDED Entitlement to an initial rating in excess of 20 percent for right knee instability is remanded. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis manifested by limitation of extension is remanded. FINDING OF FACT The evidence demonstrates that effective October 1, 2015, the Veteran's service-connected residuals of a left total knee replacement were manifested by chronic residuals consisting of severe painful motion or weakness. CONCLUSION OF LAW The criteria for an increased 60 percent rating effective October 1, 2015, for the residuals of a left total knee replacement have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1984 to April 1988, from August 1989 to July 1993, and from October 1998 to April 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in February 2012 and June 2012 by the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. The transcript is of record. The Board notes that the issues of entitlement to increased ratings for left knee disabilities prior to the Veteran's left total knee replacement on June 5, 2014, were addressed in the January 2019 decision. The issues remaining on appeal were remanded for additional development in January 2019, August 2020, and February 2021. 1. Entitlement to an increased 60 percent rating effective October 1, 2015, for the residuals of a left total knee replacement. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. VA regulations generally provide for separate ratings based on separate disabilities, not separate symptoms. See Cullen v. Shinseki, 24 Vet. App. 74, 81-82 (2010). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id. Such evidence may include facial expression, such as wincing, muscle spasm, and crepitation. See 38 C.F.R. § 4.59. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016) An examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record. Id. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA must consider the claim for a higher rating pursuant to the former and revised regulations after February 7, 2021. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). It is noted, however, that these changes included no pertinent revisions to Diagnostic Codes 5256, 5260, and 5261. Prior to February 7, 2021, Diagnostic Code 5055, knee replacement (prosthesis), provided a 100 percent rating for one year after implantation of the prosthesis. Following the one-year period, the residuals of a knee replacement were rated 60 percent with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion were to be rated by analogy to Codes 5256, 5261, or 5262. The minimum rating for a prosthetic knee replacement was 30 percent. Effective from February 7, 2021, Diagnostic Code 5055 provides a 100 percent rating for four months following implantation of prosthesis or resurfacing. A 60 percent rating is provided with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are to be rated by analogy to Codes 5256, 5261, or 5262. The minimum rating for total replacement is 30 percent. Diagnostic Code 5256 provides a 60 percent rating for knee ankylosis that is extremely unfavorable, in flexion at an angle of 45 degrees or more. A 50 percent rating is provided with flexion between 20 degrees and 45 degrees. A 40 percent rating is provided with flexion between 10 degrees and 20 degrees. A 30 percent rating is provided with a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. Diagnostic Code 5260 provides a 30 percent rating where knee flexion is limited to 15 degrees; 20 percent where limited to 30 degrees; 10 percent where limited to 45 degrees; and 0 percent where limited to 60 degrees. Diagnostic Code 5261 provides a 50 percent rating where knee extension is limited to 45 degrees; 40 percent where limited to 30 degrees; 30 percent where limited to 20 degrees; 20 percent where limited to 15 degrees; 10 percent where limited to 10 degrees; and 0 percent where limited to 5 degrees. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. The Veteran contends that his left knee disorder is more severely disabling than reflected by the assigned rating. He reports having left knee problems that continued after his total knee replacement. At his September 2018 hearing he described having severe daily left knee pain, estimated as 10 on a 10-point scale, with locking and a grinding sensation. He stated his symptoms had been attributed to iliotibial bank syndrome. The pertinent medical evidence of record includes a March 2016 VA examination report noting the Veteran complained of post-surgery left knee problems with iliotibial band pain. It was noted that the Veteran was awaiting full recovery of his left knee before replacing the right knee. He reported current left knee pain at level nine without medication and at level five with medication. The examiner noted left total knee joint replacement with intermediate degrees of residual weakness, pain, or limitations of motion. There was left knee pain on flexion and extension that did not result in functional loss. VA treatment records dated in April 2017 included a diagnosis of iliotibial band friction syndrome. There was moderate left knee soft tissue swelling, tenderness, and palpable crepitance over the iliotibial band with knee flexion and extension. Private treatment records dated in November 2019 noted the Veteran had severe lateral left knee pain that began eight months after his left total knee arthroplasty with treatment including multiple injections in the iliotibial band and Voltaren cream three times a day. He had pain with prolonged walking and when not using Voltaren his pain was level seven to eight. A December 2019 VA examination report noted complaints of left knee locking, stiffness, and pain since the 2014 left knee procedure. There was abnormal left knee motion with flexion to 100 degrees and extension limited to 10 degrees. The examiner noted there were intermediate degrees of residual weakness, pain, or limitations of motion. VA examination in March 2021 included left knee active range of motion findings with flexion to 90 degrees and extension to 0 degrees. Passive range of motion was from 0 to 110 degrees. There was evidence of pain with weight-bearing and nonweight-bearing, with active and passive motion, and that caused functional loss with limited prolonged standing, walking, and bending. There was objective evidence of crepitus and moderate tenderness at the insertion of the iliotibial band. Pain, fatigability, and weakness were found to significantly limit functional ability with repeated use over time and during flare-ups. Estimated range of motion during flare-ups was from 0 to 80 degrees. Disturbance of locomotion and swelling were additional factors contributing to disability. There was no evidence of left knee muscle atrophy or ankylosis. A March 2021 addendum noted left total knee joint replacement residuals including pain and decreased range of motion. Based upon the evidence of record, the Board finds that since October 1, 2015, the Veteran's service-connected residuals of a left total knee replacement were manifested by chronic residuals consisting of severe painful motion or weakness. The Veteran's post-surgical complications from his 2014 left total knee replacement include iliotibial band syndrome with medical findings indicative of persistent pain and weakness. The overall evidence of record demonstrates his chronic residuals have resulted in a functional loss with use and during flare-ups consistent with the maximum schedular rating criteria of severe painful motion or weakness for a total knee replacement. Therefore, an increased 60 percent rating effective from October 1, 2015, is warranted. The Board notes that the Veteran's claim for increased ratings for his right knee disability is being Remanded, in part, to obtain outstanding VA treatment record. There is no perceived prejudice in adjudicating the left knee increased rating claim. Notably, as discussed below, the outstanding VA records pertain to a consult for physical therapy and a period of convalescence following the Veteran's October 2020 right knee surgery. There is no indication of there being outstanding relevant records pertaining to the left knee. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent for right knee instability is remanded. 2. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis manifested by limitation of extension is remanded. The Veteran contends that his right knee disabilities are more severe than reflected by the presently assigned evaluations. At his September 2018 hearing he described having a total anterior cruciate ligament tear in the right knee and reported having been prescribed assistive devices including braces. He also stated that he had been given a cane that he used occasionally. Private treatment records show he underwent a partial medial and lateral meniscectomy and micro fracture surgery to the right knee in October 2020. A review of the record reveals VA treatment records pertinent to the Veteran's right knee disability claims were added to the record that are not shown to have been considered in a May 2021 supplemental statement of the case. Those records include a November 2020 report indicating the Veteran had requested a consult for physical therapy. VA records dated through December 2020 do not include a consult for physical therapy nor address the need for a period of convalescence following the Veteran's October 2020 right knee surgery. Although the Veteran's right knee disabilities were addressed in a March 2021 VA examination, the provided report included inconsistent findings as to the Veteran having had a right knee meniscal tear and a finding that he had not been prescribed devices for ambulation that is inconsistent with the other evidence of record. As such, the Board finds that additional development is required to obtain any pertinent VA treatment records created after December 14, 2020, and for an adequate examination addressing his right knee disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records pertinent to his right knee disability claims for the period since December 14, 2020. A specific search must be conducted for any response to the Veteran's request for a physical therapy consult in November 2020 or any information addressing the need for a period of convalescence following his right knee surgery in October 2020. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.