Citation Nr: 21042106
Decision Date: 07/12/21	Archive Date: 07/12/21

DOCKET NO. 11-04 677
DATE: July 12, 2021

ORDER

Entitlement to a 60 percent, but no higher, rating for a total left knee replacement with residual scar from July 1, 2012 is granted, subject to the regulations governing payment of monetary rewards.

FINDING OF FACT

From July 1, 2012, the Veteran's left knee disability manifested by moderate to severe painful motion during flare-ups. 

CONCLUSION OF LAW

From July 1, 2012, the criteria for a 60 percent, but no higher, rating for left knee replacement are met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. § 4.68, 4.71a, Diagnostic Code 5055.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1985 to July 2009.

This matter is on appeal from a December 2009 decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The case was previously before the Board in February 2016 when the Board denied entitlement to an increased rating for the Veteran's left knee disability. The Veteran appealed the February 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2016, the Court granted a Joint Motion for Remand (JMR) that vacated the Board's decision and remanded it for further action. This matter was remanded for further development in March 2017, September 2017, November 2018, and March 2021. 

Left Knee Disability

The Veteran contends that he is entitled to a rating in excess of 30 percent for his service-connected total left knee replacement from July 1, 2012. 

In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability, and separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.  

The Veteran's disability is rated pursuant to Diagnostic Code (DC) 5055. Under DC 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. After this one-year period, 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, Code 5055. 

The amendment to DC 5055 reduced the period for a total rating from one year to four months following implantation of prosthesis or resurfacing. In this case, the Veteran has already been awarded a 100 percent rating for the year following the total knee replacement, and the period on appeal follows this one-year period. Thus, the amendment to DC 5055 does not affect the Veteran's rating during the period on appeal, and the Board will not conduct a separate analysis of this amendment. 

Under DC 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees, a 20 percent rating is available where flexion is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a.

Under DC 5261, a 10 percent rating is warranted where extension of the knee is limited to 10 degrees, a 20 percent rating is warranted where extension is limited to 15 degrees, a 30 percent rating is warranted where extension is limited to 20 degrees, a 40 percent rating is warranted where extension is limited to 30 degrees, and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a.

Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). The Veteran may also be assigned separate ratings for limitation of motion under Diagnostic Code 5260 or 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997).

Consideration of other Diagnostic Codes for rating a knee disability (5256, 5258, 5259, 5262, 5263) is inappropriate in this case as the Veteran's knee disability does not include the pathology required in the criteria for those Diagnostic Codes (ankylosis, cartilage impairment with effusion, removal of cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. 

When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). 

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In both initial and increased rating claims, the Board must consider staged ratings for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The potential for staged ratings accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. Id. The Board has therefore considered the claim on appeal with the potential for a staged rating in mind.

The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided.

In this case, the Veteran was provided with a VA examination in June 2015 in which he reported flare-ups in the left knee with pain ranging from 4-5/10 to 8-9/10 that may last several hours. He reported that he is most likely to experience a flare-up after exercising or performing yardwork. He reported functional limitation while standing, walking, exiting a car, and ascending or descending stairs. Initial range of motion testing showed flexion from 0 to 95 degrees and extension from 95 to 0 degrees. There was evidence of pain with weight bearing and no evidence of localized tenderness or pain on palpation or crepitus. The Veteran was able to perform repetitive use testing at least three repetitions with no additional functional loss or range of motion. The examiner stated that he could not provide an estimate of range of motion during flare-ups because doing so would require resorting to mere speculation. As explained in the prior remands, this opinion does not adequately address the limitation in range of motion during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). The examiner noted less movement than normal "due to ankylosis, adhesions, etc., deformity of locomotion, interference with standing." As discussed in the prior remands, this notation does not clearly address whether the Veteran experiences ankylosis. Muscle strength testing was normal, and no muscle atrophy was noted. The examiner also noted no ankylosis. The examiner noted no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. The examiner noted that the May 2011 total knee joint replacement caused a left leg discrepancy that contributes to difficulty and awkwardness in gait. He noted that a right leg length of 98 centimeters and left leg length of 99 centimeters. He noted a left knee scar with a length of 11 centimeters and width of 0.2 centimeters. He noted constant use of a half inch right-side shoe insert for the discrepancy. The examiner noted arthritis in both knees. The Veteran reported that he works as a substitute teacher, can do his job, and has not missed work due to his knee condition. He reported that his difficulty with balance "is awkward for him in the classroom." 

The Veteran was provided with an additional VA examination in April 2017 in which the examiner noted passive range of motion from 0 to 130 degrees and active range of motion from 0 to 120 degrees. The examiner stated that he was unable to estimate limitation of motion during flare-ups. He noted no ankylosis of the left knee. He stated that "part of the Veteran's post arthroplasty disability is related to the fact that his left leg is now 2 cm longer than the right leg which obviously interferes with all forms of ambulation" and "he was given a prescription for a heel elevation." The examiner stated that flare-ups do not last for a period of a day or longer. The Veteran reported continues pain in the left knee that was less than prior to the joint replacement. He reported being relatively pain free at rest and experiencing pain upon arising in the morning that progresses through the course of the day. The Veteran was able to perform repetitive use testing with at least three repetitions, with pain, fatigue, weakness, and lack of endurance and flexion from 0 to 120 degrees and extension from 120 to 0 degrees. The examiner noted that flare-ups were not applicable. However, as discussed above, the Veteran has provided credible reports of flare-ups. As explained in the prior remands, this examination report does not adequately address the frequency, severity, or duration of symptoms during a flare-up. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). Muscle strength testing showed flexion and extension at 4/5. The examiner noted no muscle atrophy and no ankylosis. The examiner noted a history of slight lateral instability in the left knee. Joint instability testing showed anterior instability, posterior instability, medial instability, and lateral instability of 0-5 millimeters. The examiner noted a 1 centimeter by 0.3-centimeter medial scar and 1 centimeter by 0.4-centimeter lateral scar. The Veteran reported occasional use of a cane to support the left knee. He also noted an anterior left knee scar that is 12 centimeters by 0.5 centimeters with no pain. The examiner noted limitation in prolonged walking, standing, climbing, lifting/carrying, running, and jumping. 

In January 2020, the Veteran was provided with an additional VA examination. The Veteran reported using custom orthotics for the height discrepancy between the legs. He reported being unable to perform activities requiring balance and fine motor skills, decreased motive dexterity and other incidentals, pelvis tilt, and pronation instability causing pain. The Veteran reported left knee flare-ups which occur daily and are moderate to severe depending on the activity and can arise while sitting or driving. He reported being unable to walk more than 1.5 miles due to knee pain. He also reported that walking up stairs causes pain. Initial range of motion testing showed flexion from 0 to 120 degrees and extension from 0 to 120 degrees. No pain was noted upon examination, and there was no objective evidence of localized tenderness or pain on palpation. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with use over time. The examiner estimated that pain during flare-ups causes flexion from 0 to 110 degrees and extension from 110 to 0 degrees. Muscle strength testing was normal. There was no muscle atrophy and no ankylosis. The examiner noted no history of recurrent subluxation or lateral instability. Joint stability testing was performed, and no joint instability was noted. The examiner noted a left knee scar measuring 14 centimeters by 1 centimeter. The Veteran reported not using any assistive devices. 

In October 2020, the Veteran was provided with an additional VA examination in which the examiner noted "great knee pain and discomfort" in the left knee following knee replacement. The examiner noted pain while ascending and descending stairs, getting in and out of a car, intermittent foot dragging and shuffling, and balance issues. The Veteran reported daily left knee flare-ups with moderate to severe pain which are precipitated by extended walking and standing. The examiner noted that flare-ups are alleviated by topical pain relievers, application of pressure, and using a percussion going on muscles. The Veteran reported being unable to jog and having overall quality of life impacts with moderate impact on activities due to, but not limited to, balance and equilibrium challenges. Initial range of motion testing showed flexion from 0 to 110 degrees and extension from 110 to 0 degrees. The examiner noted pain on flexion and objective evidence of localized tenderness or pain on palpation. There was no evidence of pain with weight bearing and no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examiner estimated that pain and lack of endurance during flare-ups limits flexion from 0 to 110 degrees and extension from 110 to 0 degrees. Muscle strength testing was normal. There was no ankylosis. The examiner noted no history of recurrent subluxation or lateral instability. Joint instability of the left knee was noted upon examination, with anterior instability, posterior instability, medial instability, and lateral instability of 0-5 millimeters. The examiner noted a midline left knee scar of 13 centimeters by 0.3 centimeters. The Veteran reported constant use of an orthotic with a half inch right should lift for the left leg discrepancy. The examiner noted difficulty moving up and down stairs without pain. He also noted difficulty getting in and out of cars, dragging and shuffling his feet intermittently, and experiencing balancing issues, and stated that these would interfere with a physically demanding occupation. 

Based on the foregoing evidence, the Board finds that from July 1, 2012 the Veteran's left knee disability manifests by flare-ups which cause moderate to severe pain. Specifically, the June 2015 VA examiner noted the Veteran's report of flare-ups of 8-9/10 pain lasting for hours, and the Veteran reported continued pain during the April 2017 VA examination. Further, the January 2020 VA examiner noted that the Veteran continued to report moderate to severe pain during flare-ups, and the October 2020 VA examiner noted great pain and discomfort in the left knee. The Veteran is competent to report the readily observable symptoms of his left knee disability, such as severe pain during flare-ups. See, e.g., Washington v. Nicholson, 21 Vet. App. 191, 195 (2007). The Board also finds no reason to doubt the credibility or sincerity of these reports of severe pain. Thus, having applied the benefit of the doubt, the Board finds that the Veteran's left knee disability more nearly approximates the criteria for a 60 percent rating under DC 5055 for chronic residuals consisting of severe painful motion. 38 C.F.R. § 4.71a, Code 5055.

The Board concludes that the 60 percent rating is the maximum awardable benefit. The record reflects the presence of a surgical scar, complaints of instability, and length discrepancy as a result of the surgery. These additional symptoms may be rated under other Diagnostic Codes; however, the amputation rule provides, in pertinent part, that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were an amputation to be performed. 38 C.F.R. § 4.68. An above the knee amputation, not to include a thigh amputation, is rated 60 percent disabling. See 38 C.F.R. § 4.71a, Diagnostic Codes 5162, 5163. Accordingly, the Veteran may not receive a combined rating greater than 60 percent for left lower extremity disability at or below the knee level. Thus, consideration of the scar, instability, and leg length discrepancy under alternative criteria is not warranted. See 38 C.F.R. § 4.68.

Further, the Board has considered whether consideration of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is appropriate in light of the evidence of occupational limitation discussed above. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as noted above, the Veteran has reported that he is able to work despite the functional limitation discussed above and has not missed work due to his knee condition. Thus, the Board finds that the issue of entitlement to a total disability rating due to unemployability has not been raised by the record.

In sum, a rating of 60 percent, but no higher, is warranted for the Veteran's left knee disability under DC 5055 from July 1, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.68, 4.71a, Diagnostic Code 5055. 

 

 

J. B. FREEMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. H. White, 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.