Citation Nr: 21041511 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 10-22 459A DATE: July 9, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for right total knee replacement from October 1, 2018 is denied. Entitlement to a disability rating in excess of 30 percent for left total knee replacement from September 1, 2019 is denied. FINDINGS OF FACT 1. From October 1, 2018, the Veteran's residuals of right total knee replacement manifests intermediate degrees of residual weakness, pain, or limitation of motion. 2. From September 1, 2019, the Veteran's residuals of right total knee replacement manifests intermediate degrees of residual weakness, pain, or limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for right total knee replacement from October 1, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 2. The criteria for a disability rating in excess of 30 percent for left total knee replacement from October 1, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to April 1978 and from April 1987 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. The Board remanded this case in March 2021 for further development. In July 2012, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript of the hearing is of record. The Veteran was provided an opportunity for another hearing in February 2017 and January 2018, but he did not respond which indicated that he did not want another hearing. The Board notes that in an April 2021 rating decision, the Veteran was granted service connection for right lower extremity scarring effective August 22, 2017 and left lower extremity scarring effective July 31, 2018. However, as the Veteran has not indicated any disagreement with the ratings or effective dates assigned, the Board finds that these issues are not before it at this time. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509 10 (2007). By way of history, the Veteran underwent a right total knee arthroplasty on August 22, 2017. He was provided a 100 percent disability rating for one year following the implantation of his prosthesis from August 22, 2017 to September 30, 2018 under Diagnostic Code 5055. He was then assigned a 30 percent disability rating from October 1, 2018. He underwent a left total knee arthroplasty on July 31, 2018. He was provided a 100 percent disability rating for one year following the implantation of his prosthesis from July 31, 2018 to August 31, 2019 under Diagnostic Code 5055. The periods when the Veteran was assigned 100 percent disability ratings are excluded from consideration as he was in receipt of the highest schedular rating. The Board notes that the schedular criteria for rating the knee have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. In these regulatory changes, Diagnostic Code 5055 reduced the duration of the temporary 100 percent rating following implantation of prosthesis from one year to four months and included resurfacing. Diagnostic Codes 5257 (instability) and 5262 (impairment of the tibia and fibula) were also amended. See 85 Fed. Reg. 76,453, 76,461 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, in this case, it can only be applied in this matter from February 7, 2021, forward. The Board notes that while Diagnostic Codes 5257 and 5262 were amended, the evidence of record shows that the residuals of the Veteran's right and left total knee replacement did not manifest in instability or impairment of the tibia and fibular. Further, the Veteran did not undergo a knee replacement or resurfacing of the right knee after October 1, 2018 or the left knee after September 1, 2019. As such, the 100 percent rating under Diagnostic 5055 under the new and old criteria is not for application. Further, as noted above, the duration of the temporary 100 percent rating following implantation of prosthesis under the new criteria. As such, the Board concludes that the application of the amended rating criteria would not result in a higher disability rating for the Veteran's right and left total knee replacements from February 7, 2021, forward. Under the old criteria, Diagnostic Code 5055 provides that a 100 percent rating will be assigned for one year following implantation of a prosthesis. After that, a minimum 30 percent rating is assigned with intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5260 (limitation of flexion of the knee), or 5262 (limitation of extension of the knee). A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Under the new criteria, Diagnostic Code 5055 provides that a 100 percent rating will be assigned for four months following the implantation of a prosthesis or resurfacing. After that, for total replacement, a minimum 30 percent rating is assigned with intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5260 (limitation of flexion of the knee), or 5262 (limitation of extension of the knee). A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. After the 100 percent rating period, resurfacing is evaluated under Diagnostic Codes 5250 through 5255 with no minimal evaluation. Under the old and new rating criteria, Diagnostic Code 5260, which contemplates limitation of leg flexion, provides for a 0 percent rating for flexion limited to 60 degrees; a 10 percent rating for flexion limited to 45 degrees; a 20 percent rating for flexion limited to 30 degrees; and a 30 percent rating for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under the old and new rating criteria, Diagnostic Code 5261, which contemplates limitation of leg extension, provides for a 0 percent rating for extension limited to 5 degrees; a 10 percent rating for extension limited to 10 degrees; a 20 percent rating for extension limited to 15 degrees; a 30 percent rating for extension limited to 20 degrees; a 40 percent rating for extension limited to 30 degrees; and a 50 percent rating for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and 5263 also address ratings for knee disabilities. However, in this case, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), subluxation or instability (to include patellar) (Diagnostic Code 5257), meniscal conditions (Diagnostic Codes 5258 and 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263); thus, the Diagnostic Codes pertaining to such impairments are not applicable. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Further, under 38 C.F.R. § 4.45, consideration must be given to weakened movement, premature or excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). Moreover, the intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. 38 C.F.R. § 4.59. 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. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. In a November 2018 letter, Dr. D. A. Vermillion stated that the Veteran underwent a right total knee arthroplasty on August 22, 2017 and a left total knee arthroplasty on July 31, 2018. They recently had a telephone follow up on October 26, 2018 and it was noted that the Veteran was "doing great" overall and should progress his activity as tolerated, but was cautioned not to overwork. In a May 2020 lay statement, the Veteran reported his bilateral total knee arthroplasties had significantly reduced the amount of pain, but he still had limited mobility, joint noise, occasional swelling, and inability to kneel on either knee without a great deal of pain. Post-service treatment records show that the Veteran underwent a right total knee arthroplasty on August 22, 2017 and a left total knee arthroplasty on July 31, 2018. They showed that he had knee pain. At the April 2021 VA examination, the Veteran reported that since the last VA examination (July 2016), he continued to experience pain and limitations in his activities of daily life due to his knee replacements. He described his right knee pain as four out of ten with weightbearing activities and his left knee pain as three out of ten with weightbearing activities. He experienced crepitus and occasional swelling. His reported functional loss included not running, jumping, or playing sports and limitations in kneeling, squatting, and stair climbing due to his knee pain. With regards to his left total knee replacement, he stated he was unable to kneel. The Veteran denied flare ups or a history of instability or recurrent subluxation of the knee. Upon initial range of motion testing, the Veteran's right and left knee flexion was to 120 degrees and extension was to 0 degrees, with pain noted on flexion. There was evidence of pain with weightbearing, active motion, and passive motion, but it did not result in functional loss. The examiner found that right and left knee flexion was to 110 degrees specifically attributable to pain, weakness, fatigability, incoordination, or other. Passive range of motion was the same as active range of motion in both knees. There was pain on passive range of motion and evidence of pain when the joint was used int non-weightbearing. There was objective evidence of crepitus and mild tenderness in the suprapatellar region. Upon repetitive use testing, there was no additional loss of motion in either knee. While the Veteran was not examined immediately after repeated use over time, the examiner found that pain significantly limited his functional ability with repeated use over time and estimated his right and left knee flexion to 100 degrees and extension to 0 degrees. There was no muscle atrophy, ankylosis, recurrent subluxation or persistent instability, ligament tear, recurrent patellar instability, surgical repair of the knee for patellar instability, tibial or fibular impairment, or meniscal condition. The Veteran did not require a prescription by a medical provide for a cane, walker, crutch, or brace for ambulation. The examiner found that the residuals of the Veteran's right and left total knee replacement were intermediate degrees of residual weakness, pain, or limitation of motion. The functional impact of the Veteran's knee disabilities included impacting his ability to perform physical labor, such as running, jumping, squatting, kneeling, stair climbing, or prolonged walking. 1. Entitlement to a disability rating in excess of 30 percent for right total knee replacement from October 1, 2018 is denied. 2. Entitlement to a disability rating in excess of 30 percent for left total knee replacement from September 1, 2019 is denied. Based on a careful review of all the subjective and clinical evidence, the Board finds that the Veteran's residuals of a right total knee replacement did not warrant a disability rating in excess of 30 percent under Diagnostic Code 5055 from October 1, 2018 and residuals of a left total knee replacement did not warrant a disability rating in excess of 30 percent from September 1, 2019 under Diagnostic Code 5055. In other words, the Veteran's residuals of right and left total knee replacement did not manifest in chronic residuals consisting of severe painful motion or weakness in the affected extremity. The Board finds that the clinical findings of the April 2021 VA examination provides the most probative evidence. The examiner found that the Veteran's residuals of right and left total knee replacement manifested intermediate degrees of residual weakness, pain, or limitation of motion. Additionally, as noted, Diagnostic Code 5055 also provides for ratings greater than 30 percent if appropriate under diagnostic codes 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula) by analogy. However, the medical evidence does not show that either of the Veteran's knees was ankylosed, manifested by impairment of the tibia and fibula, or manifested by extension limited to at least 30 degrees. As such, there is no basis upon which to award a higher 60 percent evaluation for residuals of right and left knee total replacement from October 1, 2018 and September 1, 2019, respectively, under Diagnostic Code 5055. The Board has considered whether a separate disability rating is appropriate under Diagnostic Code 5260 (limitation of flexion). However, the evidence does not demonstrate flexion limited to at least 45 degrees. As such, Diagnostic Code 5260 is not applicable. Further, as noted above, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), subluxation or instability (to include patellar) (Diagnostic Code 5257), meniscal conditions (Diagnostic Codes 5258 and 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263); thus, the Diagnostic Codes pertaining to such impairments are not applicable. The Board finds that the preponderance of the evidence is against finding that a higher rating is warranted for the Veteran's right total knee replacement from October 1, 2018 and left total knee replacement from September 1, 2019. Therefore, the benefit-of-the-doubt rule does not apply and a disability rating in excess of 30 percent from October 1, 2018 for right total knee replacement and from September 1, 2019 for left total knee replacement under Diagnostic Code 5055 must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.