Citation Nr: 22013571 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-63 230 DATE: March 10, 2022 ORDER Entitlement to a 60 percent rating, but not higher, for status post replacement surgery of the right knee, effective January 4, 2016, but not earlier, is granted. Entitlement to a 60 percent rating, but not higher, for a status post replacement surgery of the left knee, effective January 4, 2016, but not earlier, is granted. Entitlement to a 10 percent rating, but not higher, for gastroesophageal reflux disease (GERD), effective September 19, 2017, but not earlier, is granted. FINDINGS OF FACT 1. Effective January 4, 2016, the Veteran's status post replacement surgery of the left knee residuals were manifested by chronic residuals of a prosthetic replacement of the left knee joint consisting of severe painful motion or weakness in the affected knee. 2. Effective January 4, 2016, the Veteran's status post replacement surgery of the right knee residuals were manifested by chronic residuals of a prosthetic replacement of the right knee joint consisting of severe painful motion or weakness in the affected knee. 3. Effective September 19, 2017, resolving all reasonable doubt in favor of the Veteran, the Veteran's GERD was manifested by pyrosis, reflux, and sleep disturbance, but not manifested by symptomatology more nearly approximating persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 60 percent rating, but not higher, for a status post replacement surgery of the right knee disability, effective January 4, 2016, but not earlier, have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 2. The criteria for entitlement to a 60 percent rating, but not higher, for a status post replacement surgery of the left knee disability, effective January 4, 2016, but not earlier, have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 3. The criteria for entitlement to a 10 percent rating, but no higher, for gastroesophageal reflux disease (GERD) effective September 19, 2017, but not earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1970 and from January 1975 to May 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2016 and April 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In August 2021, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. The Board also remanded claims for service connection for low back, left ankle, and left foot disabilities. Service connection for low back, left ankle, and left foot disabilities was established in a November 2021. As those claims have been granted, they are no longer on appeal before the Board. Increased Rating Disability ratings are based on VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. A rating is assigned by comparing the extent to which a service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the criteria for the percentage ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an increased rating for a right knee disability. 2. Entitlement to an increased rating for a left knee disability. Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The rating of the same disability under different diagnostic codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. 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. Those 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." 85 Fed. Reg. 230 (Nov. 30, 2020). 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. Therefore, the Board will consider the claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria as of February 7, 2021. The criteria that are more favorable to the Veteran will be applied. Prior to the regulatory change, pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint was 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, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. As of February 7, 2021, under the revised VA regulations governing musculoskeletal disabilities under 38 C.F.R. § 4.71a, the following criteria apply to rating prosthetic implants and resurfacing. When a rating is assigned for joint resurfacing or the prosthetic replacement of a joint under Diagnostic Codes 5051 to 5056, an additional rating under 38 C.F.R. § 4.71a may not also be assigned for that joint, unless otherwise directed. The rater shall only rate a revision procedure in the same manner as the original procedure under diagnostic codes 5051-5056 if all the original components are replaced. The term prosthetic replacement in Diagnostic Codes 5051 to 5053 and 5055 to 5056 means a total replacement of the named joint. However, in Diagnostic Code 5054, prosthetic replacement means a total replacement of the head of the femur or of the acetabulum. The 100 percent rating for one year following implantation of prosthesis will commence after initial grant of the one month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. The 100 percent rating for four months following implantation of prosthesis or resurfacing under Diagnostic Codes 5054 and 5055 will commence after initial grant of the one-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. Special monthly compensation is assignable during the 100 percent rating period the earliest date permanent use of crutches is established. 38 C.F.R. § 4.71a. Under the revised VA regulations, 38 C.F.R. § 4.71a, Diagnostic Code 5055 provides a 100 percent rating for four months following implantation of prosthesis or resurfacing. 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 or with intermediate degrees of residual weakness, pain, or limitation of motion, rated by analogy to diagnostic codes 5256, 5261, or 5262. A 30 percent rating is the minimum rating, for total replacement only. At the conclusion of the 100 percent rating period, the rater will rerate resurfacing under diagnostic codes 5256 through 5256. There is no minimum rating for resurfacing. The inability to return to any employment shows a need for continuing convalescence under 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291 (1995); Felden v. West, 11 Vet. App. (1998). Under Diagnostic Code 5256, a 40 percent rating is warranted for ankylosis in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is warranted for extremity unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Diagnostic Code 5257 provides that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of a knee. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Subluxation of the patella is the incomplete or partial dislocation of the knee cap. Rykhus v. Brown, 6 Vet. App. 354 (1993). Under Diagnostic Code 5260, a 10 percent rating is assigned for limitation of flexion of the knee to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is assigned for limitation of extension of the knee to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Pursuant to Diagnostic Code 5262, a 30 percent rating is warranted when there is malunion of the tibia and fibula, with marked knee or ankle disability. A schedular maximum 40 percent rating is warranted when there is nonunion of the tibia and fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The words slight, moderate, and severe as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension, or for limitation of motion and instability or subluxation of the knee, or meniscal pathology. However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating. 38 C.F.R. § 4.14; VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004);VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). The Veteran filed the increased rating claim on January 4, 2016. The Veteran is currently assigned a 30 percent rating for status post total knee replacement with mild limitation of motion, left knee with osteoarthritis and instability and shin splints under Diagnostic Code 5055 prior to December 11, 2021, and a 60 percent rating, effective December 11, 2021. The Veteran also is currently assigned a 30 percent rating for status post total knee replacement with mild limitation of motion, right knee with osteoarthritis and instability and shin splints under Diagnostic Code 5055, effective December 8, 2008. The Veteran contends that the bilateral knee disabilities are more severe than that represented by the assigned ratings. A September 2015 whole body bone scan found evidence of bilateral knee arthroplasty with satisfactory appearance and no abnormal tracer uptake in the region of the knee joint on either side. At a January 2016 private knee examination, the Veteran complained of left knee pain after standing for 15 minutes, climbing stairs, or walking on uneven ground. The Veteran was also unable to fully bend the knee joints to squat. Range of motion was, at worst, to 132 degrees of flexion in the left knee and 136 degrees of flexion in the right knee. The Veteran was noted as having less movement than normal, weakened movement, excess fatigability, disturbance of locomotion, interference with standing and an inability to squat. The Veteran occasionally used a cane to aid in locomotion. At an April 2016 VA examination, the Veteran complained of bilateral knee pain. The Veteran stated that his pain was 1 to 2 out of 10 at the end of the day but became 10 out of 10 when standing or walking. The Veteran complained of right knee swelling but stated the left knee hurt more than the right. Range of motion was, at worst, 0 to 135 degrees of flexion and 135 to 0 degrees of extension in the right knee. Range of motion was, at worst, 0 to 125 degrees of flexion and 125 to 0 degrees of extension in the left knee. The Veteran experienced pain, fatigue, weakness, lack of endurance, swelling, slight lateral instability, and incoordination bilaterally. The Veteran also had difficulty walking and could not stand or sit for long periods. The Veteran occasionally used a cane to aid in locomotion. April 2016 diagnostic testing revealed status post bilateral total knee prosthesis with no significant acute abnormality. During an April 2021 Board hearing, the Veteran complained of bilateral knee pain, weakness, and an inability to bend, kneel, stand from a sitting position, walk for long periods, or bear weight directly on the knee. At a January 2021 VA examination, the Veteran described worsening bilateral, sharp knee pain. The Veteran stated he experienced bilateral knee pain when climbing stairs, running, jumping, walking, sitting, or squatting. The Veteran also reported experiencing knee stiffness. The Veteran was noted as having right and left knee flexion to, at worst, 55 degrees and extension to 15 degrees. The Veteran experienced pain, fatigability, weakness, lack of endurance, and incoordination, bilaterally. The Veteran constantly used a brace and cane to aid in locomotion. The Board has reviewed the Veteran's medical records and finds that for both the left and right knee disabilities, effective January 4, 2016, the date the increased rating claim was first filed, the Veteran's symptomatology most closely approximates a 60 percent disability rating under Diagnostic Code 5055 as the record demonstrates chronic residuals consisting of severe painful motion and weakness in both knees. Therefore, an increased rating of 60 percent is warranted pursuant to Diagnostic Code 5055. The Board notes that a 60 percent rating is the maximum schedular rating assignable under Diagnostic Code 5055, after the one year following replacement, which has expired. The Board also notes that the 60 percent rating is the equivalent of an amputation rating for the right knee, so no higher rating can be assigned. Accordingly, the Board finds that, throughout the period of appeal, the preponderance of the evidence is for the assignment of a 60 percent rating, but not higher, effective January 4, 2016, but not earlier, for the right and left knee disabilities. Therefore, the claim for an increased rating is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to an increased rating for gastroesophageal reflux disease (GERD). The Veteran contends that he is entitled to an increased rating for GERD, which is rated under Diagnostic Code 7399-7346. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Codes to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the Veteran's specific disability is not listed in the Rating Schedule. When VA's Rating Schedule does not list the specific disability being rated, the disability is rated under a closely related disease or injury in which the functions affected, the anatomical localization, and the symptomatology are analogous. 38 C.F.R. § 4.20. Disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99." 38 C.F.R. § 4.27. Under Diagnostic Code 7346, a 10 percent rating is assigned when two or more of the symptoms required for a 30 percent rating are present but are of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and is productive of considerable impairment of health. The maximum rating of 60 percent is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. The increased rating claim stems from the initial grant of service connection for GERD, effective September 19, 2017. The Veteran is currently assigned a 0 percent rating for GERD, prior to September 8, 2021, and a 10 percent rating, effective September 8, 2021, pursuant to Diagnostic Code 7399-7346. The Veteran contends that the current disability is more severe than that represented by the assigned ratings. At an April 2018 VA examination, the Veteran reported having heartburn problems since the 1970s. The Veteran took over the counter (OTC) Prilosec (omeprazole) once daily and over the counter Zantac (ranitidine) once daily as needed (typical use is three times monthly). The Veteran reported heartburn three times a month lasting 30 to 40 minutes. The Veteran reported nocturnal symptoms two to four times a month. The Veteran had nausea and vomiting. There was no history of peptic ulcer disease, gallbladder or liver disease, or colon cancer. The Veteran reported having a bowel movement two times daily. There was no diarrhea or constipation, melena, or blood in stool. During the examination, the Veteran had pyrosis, reflux, and sleep disturbance caused by reflux. The Veteran was not found to have esophageal stricture, spasm, diverticula, or any other pertinent symptoms. The Veteran's condition was found to have no impact on the ability to work. During an April 2021 Board hearing, the Veteran reported taking Prilosec daily. He stated that without the medication, he experienced daily recurrent pyrosis, heartburn, regurgitation, and pain. At a September 2021 VA examination, the Veteran was noted as experiencing persistently, recurrent epigastric distress; pyrosis; sleep disturbance; nausea; vomiting; and hematemesis. The Veteran was not found to have esophageal stricture, spasm, or diverticula. He did experience mild epigastric tenderness. The Veteran's condition was found to have no impact on the ability to work. After consideration of the evidence of record and resolving reasonable doubt, the Board finds a 10 percent rating, but not higher, is warranted for the Veteran's GERD, effective September 19, 2017, the effective date of service connection for the disability. Effective, September 19, 2017, the evidence of record shows the Veteran receiving medication to treat GERD and evidence of pyrosis, reflux, regurgitation, and sleep disturbance. Therefore, the Board finds that two or more of the symptoms contemplated by a 30 percent rating have been met. Thus, a 10 percent rating is warranted based on the presence of two or more of the symptoms for a 30 percent rating. Although a higher rating of 10 percent is warranted, the Board finds that the preponderance of the evidence is against the assignment of an even higher 30 percent rating. The Board finds that the disability picture does not more nearly approximate the criteria for a 30 percent rating. The next higher rating of 30 percent rating is assigned when there is evidence of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. While the evidence of record does show persistently recurrent epigastric distress with pyrosis, reflux, nausea, vomiting and hematemesis, there evidence of record does not show that the Veteran's GERD resulted in symptoms of substernal, arm, or shoulder pain or was productive of considerable impairment of health. VA examiners have consistently found that the Veteran's GERD caused no impact on the ability to work, and no evidence has shown considerable impairment of health. Thus, there is no indication that, in the absence of medication, the condition is productive of considerable impairment warranting a 30 percent rating. Therefore, the Board finds that a 10 percent rating, but not higher, is warranted for GERD. In this case, the evidence supports a higher rating of 10 percent, but not higher, for GERD during the appeal period. Thus, the claim is granted. However, the preponderance of the evidence is against the assignment of any higher rating, and the claim for any rating higher than 10 percent must be denied. The Board finds that the evidence is not in relative equipoise and the evidence does not show that the disability picture more nearly approximates the criteria for any higher rating. Therefore, there is no reasonable doubt to resolved in favor of the Veteran, and entitlement to a rating higher than 10 percent for the period of time under appeal is not warranted. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.