Citation Nr: 21041603 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-15 914 DATE: July 9, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for a total left knee replacement from December 1, 2014 to December 23, 2014 is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for a total left knee replacement since June 1, 2016 is remanded. FINDING OF FACT For the period from December 1, 2014 to December 23, 2014, residuals of the Veteran's total left knee replacement manifested as moderate instability and limitation of extension at the knee. CONCLUSION OF LAW For the period from December 1, 2014 to December 23, 2014, the criteria for an increased disability rating in excess of 40 percent for residuals of a total left knee replacement have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5055, 5257, 5260 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1979 to August 1980. This claim has a lengthy procedural history. In January 2020, the Board of Veterans' Appeals (Board) issued a decision partially granting and partially denying the appeal for an increased left knee disability rating. In January 2021, the Court of Appeals for Veterans Claims (Court), granted a Joint Motion for Partial Remand (JMPR) that vacated and remanded the January 2020 Board decision only insofar as it denied entitlement to an rating in excess of 30 percent from March 3, 2014 to December 23, 2014 and from June 1, 2016. Therefore, these are the only appeal periods currently before the Board as recognized by the Court. As an initial matter, the Board recognizes an error made in the January 2020 decision in determining the periods on appeal for this issue. As noted by the Court in the January 2021 JMPR, the Board decision decided that from March 3, 2013 to December 24, 2013, the Veteran was entitled to a 30 percent disability rating for his total left knee replacement. However, the Veteran was already in receipt of a temporary 100 percent rating for his total left knee replacement from October 8, 2013 through November 30, 2014. The period of the temporary total rating is not before the Board, as the Veteran was already receiving the maximum rating allowed for his total left knee replacement. As a result, the only periods currently before the Board are entitlement to a rating in excess of 40 percent from December 1, 2014 to December 24, 2014 and entitlement to a rating in excess of 30 percent from June 1, 2016. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38U.S.C. §1155 (2012); 38C.F.R. §4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38C.F.R. §4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38C.F.R. §§4.1, 4.2 (2017); Schafrath v. Derwinski, 1nVet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38C.F.R. §4.7 (2017). 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. 38C.F.R. §4.21 (2017). When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38C.F.R. §§4.40 and 4.45. The United States Court of Appeals for Veterans' Claims held in Mitchell v. Shinseki, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38C.F.R. §4.40. The diagnostic codes pertaining to range of motion do not subsume §§ 4.40 and 4.45. The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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). 1. Entitlement to a disability rating in excess of 40 percent for a total left knee replacement from December 1, 2014 to December 23, 2014. The Veteran generally claims that during the period from December 1, 2014 to December 24, 2014 the residuals of his total left knee replacement were not properly contemplated by his 40 percent disability rating. The Veteran's service-connected left knee disability, status-post knee replacement, is rated under DC 5055 for prosthetic replacement of the knee joint. 38 C.F.R. § 4.71a, DC 5055. However, in a February 2018 rating decision by the AOJ, the Veteran was afforded a 40 percent rating based on left knee instability under Diagnostic Code (DC) 5257 and limitation of extension under DC 5261. Specifically, the Veteran was granted a 20 percent disability rating under DC 5257 for moderate instability in the left knee and a 20 percent rating under 5261 for a limitation of extension between 15 to 19 degrees. The Board notes that the criteria concerning the rating of knee disabilities under DC 5055 and 5257 was amended during the pendency of this appeal, effective from February 7, 2021. Specifically, the amendment changed the criteria for compensable ratings. 85 Fed. Reg. 76463(Nov. 30, 2020) (eff. Feb. 7, 2020). When a regulation changes during the pendency of a claim, the version most favorable to the Veteran applies. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling in part Karnasv. Derwinski,1 Vet. App. 308 (1991)). However, the amended version cannot be applied prior to its effective date. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; see also Green v. Brown,10 Vet. App. 111(1997). As a result, the amended version of DC 5055 and DC 5257 is not applicable to this claim as the period in question is prior to the effective date of the DC changes. Under DC 5055, a minimum 30 percent rating is warranted for a prosthetic replacement of the knee joint. 38 C.F.R. § 4.71a, DC 5055. DC 5055 notes that intermediate degrees for residual weakness, pain or limitation of motion should be rated by analogy to DCs 5256 (ankyloses of the knee), 5651 (limitation of extension) and 5262 (impairment of the tibia and fibula). A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. The maximum 100 percent rating is warranted for one year following implantation of the prosthesis. Id. Under the prior DC 5257, a 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under DC 5261, limited extension of the leg, a noncompensable evaluation is assigned for extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. The Veteran submitted a December 24, 2014 note from his private physician, Dr. P. Here, the provider stated that the Veteran was presenting with instability and pain in his left knee. The Veteran's knee will buckle causing him to fall but does not state how often this happens. The Veteran also states he does not rely on his left leg for any support. The provider stated that while the Veteran's left knee "clucks," this is a common occurrence after knee replacement surgery. The provider also noted the Veteran "demonstrates hyperextension upon ambulation" and has a significant gait on his left side. There is about 5 to 7 degrees of laxity with "valgus varus maneuver with the knee slightly flexed at approximately 15 degrees." The provider also states there is "mild to moderate laxity with anterior posterior drawer." The Veteran's active flexion was measured to be 115 degrees with some discomfort and a decrease in strength when compared to the right knee. No assertions regarding flare ups of his knee condition were made at this time. There are no additional statements from the Veteran, nor medical records (private or VA) that discuss the severity of the Veteran's knee condition from December 1, 2014 to December 24, 2014. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent under DC 5257 and DC 5261. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain on motion and instability of the left knee. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements are already considered in the Veteran's current ratings. Under DC 5257, the Veteran's reported moderate instability, as stated by Dr. P in December 2014, is contemplated by a 20 percent rating. In order to obtain a 30 percent disability rating under SC 5257 the record would need to demonstrate severe recurrent subluxation or lateral instability. The Veteran has not asserted that his knee was constantly giving way nor is there medical evidence of record to suggest that his instability was severe in that he fell constantly, could not stand, or was unable to walk. While the Veteran does report some instances of falling, the record does not reflect the frequency expected from severe instability. Additionally, the Veteran's limitation of extension is contemplated under DC 5261 as Dr. P reported the Veteran's left knee extension was limited to about 15 degrees. In order to obtain the next highest 30 percent rating, the Veteran's left knee extension would need to be limited to 20 degrees. There are no other extension measurements recorded from December 1, 2014 to December 23, 2014. As the only evidence of record for this period shows limitation of extension to be limited to no more than 15 degrees, a 20 percent rating under DC 5261 is warranted. Finally, a 60 percent rating under DC 5055 is not warranted as the Veteran's pain does not rise to the necessary severity level during this period. The Veteran reported during his examination with Dr. P that he has pain and instability however, he does not assert severe painful motion or weakness as required for a 60 percent rating. Moreover, functional loss caused by painful motion and weakness are already compensated by the rating under DC 5261. 38 C.F.R. §§ 4.40, 4.45, 4.59. For the reasons stated above, the Veteran's current knee pain and instability are properly considered under DC 5257 and DC 5261. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). DC 5258 and DC 5259 are not for application as the Veteran has had a total left knee replacement and thus the cartilage around his knee has been removed. DC 5260, limitation of flexion is not for application as the Veteran's flexion was measured to be 115 degrees during his December 24, 2014 examination by Dr. P. A rating under DC 5260 would require a limitation of flexion to 60 degrees or less. Evidence does not show ankylosis, functional ankylosis, impairment of the tibia and fibula by malunion or nonunion, or genu recurvatum; therefore, the criteria under DCs 5256, 5262, and 5263 do not apply. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for a total left knee replacement under DC 5257 and DC 5261 from December 1, 2014 to December 24, 2014. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The claim is denied. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 30 percent for a total left knee replacement since June 1, 2016 is remanded. The January 2021 JMPR asserts the Board erred in not providing the Veteran with an adequate VA examination. The Veteran underwent a VA examination in June 2017 in which the examiner conducted range-of-motion testing but then stated he could not offer an opinion about any additional limitation of motion after repetitive use over time. This statement is inadequate because the examiner failed to make clear that he had considered all assembled and procurable evidence, and he did not explain whether his inability to offer an opinion was based on his own limitations of knowledge or on the limitations of knowledge within the medical community generally. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Additionally, the examiner failed to specify whether the range-of-motion testing was done on both passive and active motion under-weight bearing and non-weight bearing conditions. Correia v. McDonald, 28 Vet. App. 158, 165 (2016). As a result, remand is required to provide the Veteran with an adequate VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected total left knee replacement. 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). Additionally, in so doing, 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). LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.