Citation Nr: 21040960 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-45 983 DATE: July 7, 2021 ORDER For the entire appeal period, entitlement to a 60 percent disability rating for left total knee replacement is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's left total knee replacement more nearly approximates severe painful motion. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for an increased 60 percent rating for the Veteran's left total knee replacement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Air Force from August 1950 to August 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in a February 2019 rating decision, the RO increased the disability rating for left total knee replacement to 60 percent, effective January 10, 2019. As this award does not represent a total grant of benefits sought on appeal, the claim remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In May 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran previously raised a claim for entitlement to a total disability rating based on individual unemployability (TDIU), which was denied; he has not appealed the decision. INCREASED RATING Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Additionally, 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Normal range of motion of the knee is from 0 degrees of extension (leg in straight line from hip to heel) to 140 degrees of flexion (leg bent with heel near posterior thigh). See 38 C.F.R. § 4.71a, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, ratings for traumatic arthritis are assigned under Diagnostic Code 5003, consistent with the criteria for degenerative arthritis. The criteria under Diagnostic Code 5003 allow for a 10 percent rating for arthritis with X-ray evidence of 2 or more major joints or 2 or more minor joint groups; or a 20 percent rating for arthritis with X-ray evidence of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating episodes. Id. Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, a 30 percent rating (and even higher ratings) is warranted for ankylosis of a knee in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Diagnostic Code 5257 rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability. A 10 percent rating is assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating is assigned with evidence of moderate recurrent subluxation or lateral instability; and, a 30 percent rating is assigned with evidence of severe recurrent subluxation or lateral instability. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, a noncompensable rating is warranted where knee flexion is limited to 60 degrees, a 10 percent rating is warranted where knee flexion is limited to 45 degrees, a 20 percent rating is warranted where knee flexion is limited to 30 degrees, and a 30 percent rating is warranted where knee flexion is limited to 15 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261 a noncompensable rating is warranted where knee extension is limited to 5 degrees. A 10 percent rating is warranted where knee extension is limited to 10 degrees. A 20 percent rating is warranted where knee extension is limited to 15 degrees. A 30 percent rating is warranted where knee extension is limited to 20 degrees. A 40 percent rating is warranted where knee extension is limited to 30 degrees, and a 50 percent rating is warranted where knee extension is limited to 45 degrees. Finally, pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent 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, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board notes that effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disabilities. 85 Fed. Reg. 76453 (Nov. 30, 2020). VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended versions may only be applied as of their effective date. Before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000). Importantly, the former version remains for consideration throughout the rating period on appeal, both prior to and after the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Effective February 7, 2021, Diagnostic Code 5003 was revised only insofar as it was renamed to make clear that this diagnostic code only applies to degenerative arthritis. Additionally, Diagnostic Code 5010 was revised rate post-traumatic arthritis as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010). Under the revised version of Diagnostic Code 5055, effective February 7, 2021, a minimum 30 percent rating is warranted for total knee replacement only. A 60 percent rating is warranted for prosthetic replacement of the knee joint 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 rated by analogy to diagnostic codes 5256, 5261, or 5262. A 100 percent rating is warranted for 4 months following knee resurfacing or replacement. See 85 Fed. Reg. 76453, 76461 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5055). Diagnostic Codes 5256, 5260, and 5261 were not changed by the February 7, 2021, amendments. While Diagnostic Codes 5257 (subluxation or instability) and 5262 (impairment of tibia and fibula) were revised, these diagnostic codes are not for application based on the findings in this case, as described below. For the entire appeal period, entitlement to a 60 percent disability rating for left total knee replacement is granted. The Veteran asserts entitlement to a higher disability rating for his left knee disability. As the Veteran filed his increased rating claim for his left knee disability on September 21, 2017, the appeal period begins on September 21, 2017. 38 C.F.R. § 3.400 (o)(2). The Veteran has been in receipt of a 30 percent rating prior to January 10, 2019. His rating was increased to 60 percent from January 10, 2019. The Veteran's left total knee replacement is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055. As noted above, portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021; however, the changes regarding Diagnostic Code 5055 do not materially impact the disposition of this decision. On VA examination in October 2017, the Veteran complained of increasing left knee pain. He reported sharp, intermittent pain that was worse with prolonged walking, sitting, and walking up and down the stairs. There was objective evidence of pain with active motion on flexion. The examiner opined that flare-ups would limit functional ability of the left knee. No muscle atrophy was observed. Ankylosis was not diagnosed. Joint stability testing was normal. Recurrent patellar dislocations, shin splints, stress fractures, chronic exertional compartment syndrome, or other tibial and/or fibular impairments were not assessed. There was no history of recurrent effusion. Meniscal conditions were not diagnosed. The Veteran reported using a cane regularly. On VA examination in January 2019, the Veteran again reported increasing left knee pain. Just as he reported during the October 2017 examination, the Veteran reported sharp, intermittent pain that was worse with prolonged walking, sitting, and walking up and down the stairs. He also reported constant aching. There was objective evidence of pain with active motion on flexion and extension. The examiner opined that flare-ups would limit functional ability of the left knee. Recurrent patellar dislocations, shin splints, stress fractures, chronic exertional compartment syndrome, or other tibial and/or fibular impairments were not assessed. The examiner noted a history of recurrent effusion. Meniscal conditions were not diagnosed. The Veteran reported using a cane occasionally. A July 2020 private treatment record shows diagnoses of left knee instability and left knee pain. The private physician recommended the use of a knee brace for support of the Veteran's left knee instability. During the May 2021 Board hearing, the Veteran testified that he cannot go up and down the stairs without using a bannister. His left knee gets stiff if he is in the car for two or more hours. He takes gabapentin three times a day to treat his left knee. He has sharp pains at night. If he sits for a long period of time, he has to get up and walk around because the left knee aches. The Veteran indicated that these symptoms have been present for the last four years. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran's left total knee replacement symptomatology more nearly approximates severe painful motion and weakness symptomatology contemplated by a 60 percent disability rating under Diagnostic Code 5055 throughout the entire appeal period. While the October 2017 and January 2019 VA examiners noted no joint instability or recurrent patellar subluxation/dislocation, the Veteran has competently and credibly described left knee symptoms which included weakness, stiffness, and sharp pain. The Veteran stated that he takes medication daily for the pain. He is unable to sit for long periods of time and he has to use the bannister when going up and down the stairs. The Veteran testified that these symptoms have been present for the last four years. The Veteran is competent to report the symptoms associated with his service-connected left total knee replacement and the Board has no reason to challenge the credibility of his contentions. See Jandreau, 492 F.3d at 1377; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran's reports of pain and other symptoms are thus afforded significant probative weight, and more nearly approximate severe weakness and painful motion. Furthermore, the Board notes that the findings of the October 2017 VA examination are consistent with those of the January 2019 VA examination. The Veteran was increased to a 60 percent rating based on the findings of the January 2019 VA examination. Given the foregoing, and affording the Veteran the benefit-of-the-doubt, the Board finds that the residuals of his left knee total replacement, at all times during the appeal period, manifested in severe painful motion or weakness, and that a 60 percent rating is warranted. The Board has considered whether a higher rating, through a single rating or combination, could be assigned by using the rating criteria specific to the knee rather than Diagnostic Code 5055, but finds that this would not result in a higher rating at any time during the time appeal period. In this regard, the Board initially notes that as Diagnostic Code 5055 contemplates painful motion and weakness, separate ratings (in addition to rating under Diagnostic Code 5055) under Diagnostic Codes 5259, 5260 or 5261 would constitute impermissible pyramiding. 38 C.F.R. §§ 4.14, 4.71a. Furthermore, consideration of other diagnostic codes for rating a knee disability, such as Diagnostic Codes 5256, 5258, 5259, 5262, and 5263, is inappropriate as the Veteran's left knee disability does not include the pathology required in the criteria for those Diagnostic Codes of ankylosis, dislocation of the semilunar cartilage, tibia or fibula impairments, or genu recurvatum. 38 C.F.R. § 4.71a. The Board notes that while the January 2019 VA examination report notes a history of recurrent effusion, the rating criteria for Diagnostic Code 5258 notes that effusion must be related to a meniscal or semilunar condition, for which the Veteran is not diagnosed. Therefore, a separate rating for effusion is not appropriate. The Board has considered whether a separate rating is warranted for instability of the Veteran's left knee. A 60 percent rating under Diagnostic Code 5055 is the maximum schedular evaluation under that diagnostic code. A higher rating of 100 percent is only warranted for the one-year period following the implantation of the prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board notes that a rating under Diagnostic Code 5055 encompasses all identifiable residuals of post total knee replacement and the rule against pyramiding prohibits compensating twice for the same manifestations. As the Veteran was service connected for the residuals of a total left knee replacement under Diagnostic Code 5055 throughout the appeal period, and the Board has considered instability due to the Veteran's knee replacement and subsequent weakness as a basis for awarding a 60 percent rating for the entire appeal period, a separate rating based on instability under Diagnostic Code 5257 is not warranted. Tedesco v. Wilkie, 31 Vet. App. 360, 367, n. 5 (2019) (declining to reach the question of whether the Board committed legal error when it found that a separate rating for instability under Diagnostic Code 5257 could be granted in addition to a rating for knee replacement under Diagnostic Code 5055 because to allow such a rating would constitute improper pyramiding). If in the future, however, the Veteran's left knee disability shows improvement such that a lesser rating is warranted under Diagnostic Code 5055, the Veteran may be entitled to a separate rating under Diagnostic Code 5257 if instability is shown. As previously noted, 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. The Board has considered whether the new criteria are more favorable to the Veteran from February 7, 2021. The diagnostic codes pertaining to amputation of the knee did not change, and the maximum rating available remains at 60 percent. Diagnostic Code 5055 now only provides for a 100 percent schedular rating for the 4-month period following implantation of a prosthesis or resurfacing, rather than one year. After four months, the criteria for a 60 percent or 30 percent rating did not change, nor did Diagnostic Codes 5256, 5261, or 5262 for the knees under which intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy. On the other hand, there were significant changes to Diagnostic Code 5257 pertaining to recurrent subluxation or instability of the knee. However, as discussed above, the Veteran is assigned the maximum rating possible for his left knee under Diagnostic Code 5055 without violating the amputation rule and the changes to Diagnostic Code 5257 do not allow for a rating higher than 60 percent. Moreover, newly added Note (1), effective February 7, 2021, indicates that when an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under Diagnostic Codes 5051-5056, an additional rating under § 4.71a may not also be assigned for that joint, unless otherwise directed. Thus, application of the revised Diagnostic Code 5257 for all times after February 7, 2021, is prohibited, given the rating already assigned under Diagnostic Code 5055. Thus, the Board finds that the amended criteria are not more favorable to the Veteran and the Board continues to apply the old criteria. In sum, affording the Veteran the benefit-of-the-doubt, the Board finds that a 60 percent rating, but no higher, is warranted for the Veteran's left total knee replacement for the entire appeal period. As to consideration of referral for an extraschedular rating for the time periods addressed above, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.