Citation Nr: 22012122 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-45 041 DATE: March 2, 2022 ORDER Entitlement to a disability rating in excess of 30 percent for residuals of total left knee replacement is denied. FINDING OF FACT The evidence of record demonstrates the residuals of the Veteran's total left knee replacement did not manifest as chronic residuals consisting of severe painful motion or weakness in the affected extremity; ankylosis of the knee; limitation of extension to 30 degrees or more; or nonunion of the tibia and fibula with loose motion, requiring brace. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 30 percent for residuals of total left knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force on active duty from July 1972 to August 1976. The issue comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the above issue in May 2020 to provide further development. In his September 2016 substantive appeal, the Veteran requested a live videoconference Board hearing at his local VA office. In April 2020, the Veteran requested that VA cancel his Board hearing. Accordingly, the Board considers the request for a hearing to be withdrawn. The Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R.§ 20.704. Increased Ratings VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally 38 C.F.R. Part IV. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2020); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. § 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Entitlement to a disability rating in excess of 30 percent for residuals of total left knee replacement The Veteran contends that the residuals of his total left knee replacement warrant and increased disability rating. The Veteran underwent a total left knee replacement in January 2011. After the Veteran's left total knee replacement, his left knee was evaluated under the criteria of 38 C.F.R. § 4.71a, DC 5055. In a December 2011 rating decision, the RO assigned the Veteran a temporary evaluation of 100 percent with an effective date of January 21, 2011, based on surgical treatment necessitating convalescence, which became 30 percent April 1, 2012. An October 2013 rating decision continued the Veteran's 30 percent disability rating for the total left knee replacement residuals. As a preliminary matter, the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria from that date. 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. Prior to the February 7, 2021 amendment, DC 5055 provided a total rating (100 percent) for one year following prosthetic replacement of a knee joint. Once any applicable total rating period elapsed, under DC 5055 the minimum rating for a knee replacement prosthesis was 30 percent. Intermediate degrees of residual weakness, pain, or limitation of motion (a level of disability in between those contemplated by the 30 and 60 percent ratings) were to be rated by analogy to DC 5256, 5261, or 5262. 38 C.F.R. § 4.71a, DC 5055 (2020). Prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity warranted a 60 percent disability rating. Id. As of February 7, 2021, under the amended criteria for DC 5055, the minimum rating for total knee replacement is 30 percent. 38 C.F.R. § 4.71a, DC 5055 (2021). Intermediate degrees of residual weakness, pain, or limitation of motion are to be rated by analogy to DC 5256, 5261, or 5262. Id. A 60 percent rating is warranted for prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. A 100 percent rating is warranted for four months following implantation of prosthesis or resurfacing. Id. Additionally, the criteria notes that at the conclusion of the total disability evaluation period, there is no minimum evaluation for knee joint resurfacing; residuals of knee joint resurfacing shall be evaluated under DC 5256 through 5262. Id. Diagnostic Code 5256 applies to ankylosis of the knee. A 30 percent rating is given for ankylosis of the knee at a favorable ankle in full extension, or in slight flexion between zero degrees and 10 degrees. 38 C.F.R. § 4.71a, DC 5256. A 40 percent rating is given for ankylosis of the knee in flexion between 10 degrees and 20 degrees. Id. A 50 percent rating is given for ankylosis of the knee in flexion between 20 degrees and 45 degrees. Id. A 60 percent rating is given for extremely unfavorable ankylosis of the knee in flexion at an angle of 45 degrees or more. Id. Diagnostic Code 5261 applies to limitation of extension of the leg. 38 C.F.R. § 4.71a, DC 5256. A 30 percent evaluation is assigned for extension limited to 20 degrees. Id. A 40 percent evaluation is assigned for extension limited to 30 degrees. Id. A 50 percent evaluation is assigned when extension is limited to 50 degrees. Id. The rating criteria under 38 C.F.R. § 4.71a, DC 5262 were revised, effective February 7, 2021, to specifically list and address shin splint disabilities. Prior to February 7, 2021, under DC 5262, pertaining to impairment of the tibia and fibula, a 30 percent disability rating was warranted for malunion with marked knee or ankle disability. 38 C.F.R. § 4.71a, DC 5262 (2020). A 40 percent disability rating was appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. Id. Since February 7, 2021, under DC 5262, a 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262 (2021). Malunion of the tibia and fibula are evaluated under DC 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Id. Medial tibial stress syndrome (MTSS), or shin splints, requiring treatment for no less than 12 consecutive months, and is unresponsive to surgery and either shoe orthotics or other conservative treatment, for both lower extremities warrants a 30 percent disability rating. 38 C.F.R. § 4.71a, DC 5262 (2021). The rating schedule does not define the terms "intermediate" or "severe" as they are used in DC 5055. Instead, the adjudicator must evaluate all of the evidence and render a decision that is equitable and just. 38 C.F.R. § 4.6. Clinicians' use of terminology such as severe, although an element that the Board will consider, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, the RO provided the Veteran a VA examination in July 2013. The VA examiner provided the diagnosis of residuals of a total left knee replacement. The Veteran reported that his knee was doing well since the replacement. The VA examination noted the Veteran had no complaints regarding his left knee. The Veteran did not report flare-ups of his left knee disability. The examiner reported the Veteran's abnormal left knee range of motion (ROM) as the following: flexion to 115 degrees, extension to zero degrees, with no objective evidence of painful motion. The VA examiner noted no additional loss of ROM or functional loss with testing after repetitive use. The VA examiner reported no pain on palpation of the left knee joint. The examiner reported normal muscle strength and no muscle atrophy of the left knee. The examiner noted that there was no evidence of ankylosis. The examination noted normal findings for the Veteran's joint stability tests. The VA examination reported no evidence or history of recurrent patellar subluxation or dislocation. The VA examiner reported the Veteran did not have any additional conditions of the left leg, to include shin splints (MTSS), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The VA examination noted the Veteran's left total knee replacement and described the residuals of the procedure as decreased ROM. The VA examiner noted the Veteran did not use assistive devices for normal locomotion. The VA examiner stated the Veteran's left knee condition did not impact his ability to work. The Veteran underwent a VA knee examination in October 2016. The VA examiner provided the diagnosis of residuals of a total left knee replacement. The Veteran reported that he experienced flare-ups of his knee condition, described as pain and stiffness. The examiner reported the Veteran's left knee ROM as the following: flexion to 90 degrees, extension to 0 degrees, with pain noted on examination causing functional loss. The VA examiner reported no objective evidence of localized pain on palpation of the left knee joint or crepitus. The examination noted evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions. The examination noted additional loss of function and ROM with three repetitions. The VA examiner measured the Veteran's flexion at 80 degrees and zero degrees extension after repetitive-use testing with at least three repetitions, with pain and lack of endurance noted causing functional loss. The VA examiner noted the Veteran was not examined immediately after repetitive use over time or during a flare-up. The VA examiner reported pain and lack of endurance significantly limited functional ability of the left knee with repeated use over time and during flare-ups of the Veteran's left knee condition. The VA examiner estimated the Veteran's left knee ROM as 70 degrees flexion and zero degrees extension after repetitive use over time. The VA examiner estimated the Veteran's left knee ROM as 60 degrees flexion and zero degrees extension during flare-ups. The October 2016 VA examination noted the additional factors contributing to the Veteran's disability included less movement than normal and interference with standing. The examiner reported the Veteran did not display evidence of ankylosis. The examiner reported normal muscle strength and no muscle atrophy of the left knee. The examination noted normal findings for the Veteran's joint stability tests. The VA examination reported no evidence or history of recurrent patellar subluxation or lateral instability. The VA examiner reported the Veteran did not have any additional conditions of the left leg, to include shin splints (MTSS), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The VA examiner noted the Veteran did not have a meniscus condition of the left knee. The VA examination noted the Veteran's left total knee replacement and described the residuals of the procedure as pain and stiffness. The VA examiner noted the Veteran occasionally used a cane for support. The VA examination noted the Veteran's left knee condition impacted his ability to perform occupational tasks due to stiffness, difficulty with prolonged bending of heavy lifting. VA provided the Veteran a knee examination in October 2020. The Veteran reported his left knee pain and stiffness had worsened within the past two or three years. The Veteran noted more pronounced symptoms with sitting for an hour to an hour and a half. The Veteran described his current left knee pain as a constant aching pain, rated as two out of 10. He noted swelling of his knee at the end of the day. The Veteran noted he treated his left knee with gel two to three times daily and elevated his legs daily as needed. The Veteran noted he experienced flare-ups of his left knee disability, described as stiffness and an ache when he applied pressure to the back of his knee. The Veteran rated the severity of his flare-ups as five or six out of 10. He noted his left knee flare-ups lasted around five to 10 minutes and occurred once every two to four weeks. The Veteran reported that his left knee disability prevented him from running up and down stairs, climbing ladders, standing for long periods of time, or walking long distances. The Veteran reported that he could not bend at the knees. The Veteran noted that he could not pick up or carry objects. The examiner reported abnormal left knee ROM as the following: flexion to 110 degrees, extension to 0 degrees, with pain noted on flexion causing functional loss. The VA examiner reported objective evidence of mild tenderness with palpation of the left knee joint. The Veteran's left knee displayed objective evidence of crepitus and pain with weight bearing on examination. The VA examiner noted the Veteran was able to perform repetitive-use testing with at least three repetitions and reported no additional loss of function and ROM with three repetitions. The VA examiner noted the Veteran was not examined immediately after repetitive use over time or during a flare-up of his left knee condition. The VA examiner reported the Veteran's left knee pain significantly limited functional ability of the left knee with repeated use over a period of time and during a flare-up. The VA examiner estimated the Veteran's left knee ROM as 105 degrees flexion and zero degrees extension after repetitive use and during flare-ups. The October 2020 VA examination noted no additional factors contributed to the Veteran's left knee disability. The examiner reported the Veteran did not display evidence of ankylosis. The examiner reported a reduction of muscle strength of the left knee. The Veteran's muscle strength testing showed active movement against some resistance with left knee flexion. The Veteran did not have muscle atrophy. The examination noted normal findings for the Veteran's joint stability tests. The VA examination reported no evidence or history of recurrent patellar subluxation or lateral instability. The VA examiner reported the Veteran's history of bilateral leg shin splints (MTSS) that did not affect the ROM of the knee or ankle. The VA examiner noted the Veteran's MTSS as acute and resolved. The Veteran did not have any additional conditions of the left leg, to include, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The VA examiner noted the Veteran did not have a meniscus condition of the left knee. The VA examination noted the Veteran's left total knee replacement and described the residuals of the procedure as intermediate degrees of residual weakness, pain, or limitation of motion. The VA examiner noted the Veteran did not use assistive devices for support. The VA examination noted the Veteran's left knee condition impacted his ability to perform occupational tasks, including difficulty with carrying objects, lifting, prolonged sitting, prolonged standing, prolonged walking, climbing up and down stairs, and bending down. After review of the record, the Board finds that a rating in excess of 30 percent for the Veteran's left knee disability is not warranted under DC 5055. While the Board acknowledges the Veteran's functional impairment and limited ROM due to the residuals of his left total knee replacement, the evidence of record demonstrates that a rating in excess of 30 percent for the Veteran's left knee disability is not warranted by analogy under DC 5256, 5261, or 5262. There is no evidence of record that the Veteran experienced ankylosis of the left knee. The Board notes the Veteran reported stiffness and stated that he could not bend at the knee; however, the evidence of record does not show the Veteran's left knee was fixed in one position or demonstrated the functional equivalency of ankylosis. 38 C.F.R. § 4.71a, DC 5256. Additionally, the Veteran's left knee at no point during the appeal period demonstrated a compensable degree of limitation of extension (10 degrees or more). 38 C.F.R. § 4.71a, DC 5261. Further, the Board notes the October 2020 VA examination noted the Veteran suffered from acute shin splints, which the examiner reported did not affect the Veteran's ROM of the knee or ankle. As the VA examiner noted the Veteran's bilateral shin splints had resolved, and the Veteran's medical treatment records are absent of the Veteran's complaints of or treatment for shin splints or nonunion or malunion of the tibia and fibula resulting in a knee or ankle disability, the Board finds the Veteran's left knee disability does not warrant a disability rating in excess of 30 percent under 38 C.F.R. § 4.71a, DC 5262. Similarly, the lack of a compensable degree of limitation of flexion or extension argues against a finding that the Veteran's residuals were severe as to warrant a 60 percent rating under Diagnostic Code 5055. The evidence indicates that during the appeal period, the residuals of the Veteran's left total knee replacement manifested, at worst, as residuals consistent with intermediate degrees of residual weakness, pain, or limitation of motion. The Board acknowledges the Veteran's reported symptoms of an aching pain and stiffness. Additionally, the Board notes the Veteran's descriptions of elevated pain during flare-ups. However, the evidence of record shows the Veteran described his current level of pain during the October 2022 VA examination, as a constant aching pain rated at two out of 10, which increased to a level of five to six out of ten during flare-ups. This is consistent with the Veteran's August 2014 treatment record provided by the Veteran's private orthopedist, which noted the Veteran reported minimal to no pain in his left knee. Therefore, based on the evidence of record during the period on appeal, the Board finds the residual symptoms of the Veteran's left total knee replacement did not manifest as chronic residuals consisting of severe painful motion or weakness required for a higher rating under DC 5055. Accordingly, the criteria for an increased rating for the residuals of the Veteran's left total knee replacement have not been met or nearly approximated at any time during the pendency of the appeal, and the claim is denied. 38 C.F.R. § 4.71a, DC 5055. As provided above, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities. See Deluca, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59. Notably, VA considered the evidence of functional impairment due to pain and lack of endurance, provided in the estimated limitation of motion of the left knee found in the Veteran's October 2016 and October 2020 VA examinations. Thus, consideration under DeLuca has been provided and additional consideration for a rating in excess of 30 percent is not warranted. The Board has considered whether other diagnostic codes pertaining to the knee are applicable to the Veteran's left knee condition. However, there is no indication that the Veteran's left knee was manifested by recurrent subluxation or instability or patellar instability; dislocation or removal of semilunar cartilage with symptoms of locking, pain, and effusion; or genu recurvatum at any point during the pendency of the Veteran's appeal. 38 C.F.R. § 4.71, DC 5257-59, 5263. (Continued on the next page) Additionally, the evidence of record shows the Veteran's left total knee replacement resulted in residual scarring of his left knee. The Veteran's VA examinations note a scar on the anterior aspect of the Veteran's left knee, measuring 20 centimeters in length and one centimeter in width. The Board has also considered whether separate ratings are warranted for the Veteran's scarring associated with his left total knee replacement. Scars other than on the head, face, or neck can be rated under 38 C.F.R. § 4.118, DC 7801, 7802, 7804, and 7805 based on size, nature, and disabling effects. Here, the evidence of record is absent of the Veteran's complaints of painful scarring. Further, the evidence of record does not show the Veteran's left knee scar was painful or unstable or had a total area equal to or greater than 39 square centimeters. Thus, a separate rating for the Veteran's left knee total replacement residual scarring is not warranted. 38 C.F.R. § 4.118, DC 7801-02, 7804-05. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, as discussed above, as the evidence persuasively favors against the claim for an increased rating, it is not in approximate balance. Therefore, the benefit of the doubt doctrine does not apply, and the claim for an increased rating is denied. 38 C.F.R. §§ 4.3, 4.7; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). ARIF SYED Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.