Citation Nr: 22014741 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 14-35 401A DATE: March 14, 2022 ORDER A disability rating higher than 60 percent for total right knee replacement effective June 1, 2017, and effective January 1, 2019, is denied. A compensable disability rating for scars of the right knee is denied. REMANDED Entitlement to a disability rating higher than 20 percent for instability, status-post anterior cruciate ligament reconstruction with fractured patella, of the right knee prior to April 13, 2016, is remanded. Entitlement to a disability rating higher than 10 percent for degenerative joint disease of the right knee prior to April 13, 2016, is remanded. FINDINGS OF FACT 1. The Veteran's status-post right total knee replacement has been manifested by chronic residuals consisting of severe painful motion or weakness in the right lower extremity. 2. Throughout the appeal period, the Veteran's scars of the right knee have not manifested in compensable symptoms. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 60 percent for total knee replacement of the right knee are not met. 38 U.S.C.§§ 1155, 5107(b), 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5055, 5256, 5261, 5262. 2. The criteria for compensable ratings for scars of the right knee have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in an August 2017 Travel Board hearing. A transcript of that hearing has been associated with the file. The Board remanded the matter twice in June 2021 and November 2021 for additional development. As will be explained below, the increased rating claims for instability and degenerative joint disease of the right knee will be remanded. The November 2021 examination reports are sufficient regarding the increased rating claims for total knee replacement and scars of the right knee. As such, those claims will be adjudicated. Increased Rating Right knee-total knee replacement As clarified in the June 2021 Board remand, the appeal period commences January 2013, the date the claims for increased ratings were filed. However, as the Veteran had total knee replacement of his right knee in 2016 and his total knee replacement revision was in 2017, the appeal period for this specific disability (total knee replacement of the right knee) commences 2016. Accordingly, the Veteran's right knee has been rated under Diagnostic Code 5055 as of April 13, 2016. After the November 2021 Board remand, the RO issued a December 2021 rating decision wherein it increased the disability rating for right knee-total knee replacement from 30 percent to 60 percent. The Veteran's total right knee replacement is rated as 60 percent disabling effective June 1, 2017, and effective January 1, 2019, under Diagnostic Code 5055. As his total knee replacement was rated at 100 percent between April 2016 and May 2017, and between November 2017 and December 2018 the Board will assess whether a disability rating higher than 60 percent is warranted for all other times. Among other rating criteria, VA's rating schedule includes eight diagnostic codes applicable to evaluating knee and leg disabilities, six diagnostic codes for rating disabilities involving prosthetic implants and several diagnostic codes related to amputations of the lower extremity. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263, 5051 to 5056, and 5160 to 5173. Diagnostic Code 5055 lists the diagnostic criteria specifically applicable to knee replacement (prosthesis). Under Diagnostic Code 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). 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. In Tedesco v. Wilkie, 31 Vet. App. 260 (2019), the Court held that "severe painful motion" in the criteria for a 60 percent rating under Diagnostic Codes 5055 is not synonymous with "limitation of motion," although limitation of motion may be considered when evaluating painful motion. The Veteran has been afforded three VA examinations and one independent medical examination (dated November 2013, October 2018, July 2021, and November 2021) during the appeal period in connection with his right knee disability. The July 2016 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) pertained to the left knee only. Additionally, there are VA and private medical records that illustrate treatment for the Veteran's right knee. As the Veteran is in receipt of the maximum schedular rating, the details of these records will be not discussed. Upon review of the record, the Board finds that a 60 percent disability is warranted throughout the appeal period, the maximum rating under Diagnostic Code 5055. The Veteran had total knee replacement of his right knee in 2016 and his total knee replacement revision was in 2017. Temporary total rating of 100 percent was assigned from April 13, 2016 to May 31, 2017, and from November 7, 2017 to December 31, 2018. After the temporary total rating, 60 percent is the maximum schedular rating allowed under Diagnostic Code 5055 for knee replacement. 38 C.F.R. § 4.71a. Because Diagnostic Code 5055 in VA's rating schedule pertains specifically to evaluations of total knee replacement disabilities, the Veteran's disability will not be rated by analogy to any of the other diagnostic codes. See Copeland v. McDonald, 27 Vet. App. 333, at 337 (2015). Even if it were possible to rate by analogy, the Veteran's right knee disability would remain at 60 percent. Other than the assignment of a temporary 100 percent evaluation for one year following the implantation of a prosthesis, a 60 percent disability rating is the highest rating that can be assigned pursuant to the eight diagnostic codes applicable to the evaluation of knee and leg disabilities, in addition to the six diagnostic codes for rating disabilities involving prosthetic implants. See 38 C.F.R. § 4.71a, diagnostic codes 5256 to 5263 and 5051 to 5056. The Board notes that Diagnostic Code 5055 suggests rating intermediate degrees of symptoms by analogy under 5256, 5261, or 5262. However, as stated above, the Veteran in receipt of the maximum rating for the residuals of his disability and to rate intermediate degrees of symptoms under 5256, 5261, or 5262 would only allow for a 30 percent rating. Additionally, the Board recognizes that the Veteran is separately rated for instability, status-post anterior cruciate ligament reconstruction with fractured patella and degenerative joint disease and these increased rating claims are also on appeal and for reasons that will be explained below are being remanded. Neither the Veteran nor his representative provided any evidence as to how and or why he thinks his symptoms warrant a higher rating. Regardless, the Veteran is not competent to assess the level of severity of the residuals of his right knee disability. Further, for the residuals of his status-post right total knee replacement, the Veteran is in receipt of the maximum rating allowed under Diagnostic Code 5055. The Board recognizes that the Veteran's right knee has caused him pain and impacts his ability to engage in certain physical activities. However, this is contemplated by the currently assigned 60 percent disability rating. Given the foregoing, the Board finds that a disability rating higher than 60 percent for status-post total knee replacement of the right knee is denied. Right knee-scars In an August 2021 rating decision, the RO assigned a separate rating for scars of the right knee, assigning noncompensable ratings for all three scars. The effective date assigned was November 7, 2017. The RO did not state why November 7, 2017 was the assigned effective date, but of note, it is the same date as the assignment for temporary total evaluation for total right knee replacement, for the second time it was assigned. The Veteran's scars are rated as noncompensable under Diagnostic Code 7802. During the pendency of the appeal, the criteria for evaluating certain disabilities of the skin were revised, effective August 13, 2018. See 38 C.F.R. § 4.118, (Diagnostic Codes 7801, 7802, 7805, and 7806). The amended regulations are only applicable to claims received on or after August 13, 2018, or where a claimant requests readjudication under the new criteria. See 83 Fed. Reg. 32592 (August 13, 2018) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805, 7806). The Veteran has not specifically requested consideration under the revised criteria of Codes 7801, 7802, 7805, or 7806. However, it is VA's intent that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. As such, and even though the amended regulations are not substantially different from the prior versions and would not result in a different outcome, the Board will consider both versions. Under the amended criteria which became effective on August 13, 2018, Diagnostic Code 7804 was not changed. As such, the Board will discuss this code first. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, with a maximum 30 percent rating warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). Scars can receive separate evaluations under Diagnostic Codes 7800, 7801, 7802, and 7805, despite also being rated under Diagnostic Code 7804. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). Criteria effective prior to the August 13, 2018 revision Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 6 square inches (39 square centimeters). Id. Higher ratings are available for deep and linear scars that affect a larger area, measuring at least 12 square inches. A deep scar is one associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7805, any other scars, including linear scars, are to be rated based on any disabling effects and the appropriate diagnostic code for such effects. Diagnostic Code 7805 directs that any disabling effect(s) not considered in Diagnostic Codes 7801 through 7804 should be evaluated under the appropriate diagnostic code. This instruction essentially directs that scars may be rated for the functional impairment caused by the scar. Criteria effective from August 13, 2018 After the revision, Diagnostic Code 7801 amended the notes, but the criteria for this code remained the same. The six zones of the body are defined as each extremity, anterior trunk, and posterior trunk. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (2). Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. After the revision, Diagnostic Code 7802 amended the notes, but the criteria for this code remained the same. Note (1) now reads: For the purposes of Diagnostic Code 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) now reads: A separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. After the revision, Diagnostic Code 7805 removed the parentheses but the rating criteria for this code remained the same. The parentheses which noted that linear scars were included was removed. After considering the evidence of record in light of the applicable rating criteria, the Board finds that the evidence does not support an assignment of a compensable rating for the Veteran's scars of the right knee. The scar is not of the head, face, or neck so Diagnostic Code 7800 is not for application. The Veteran was afforded three VA examinations and one independent medical examination specific to the right knee and three examinations (two by VA and one by an independent medical examiner) specific to the scars of the right knee during the appeal period. Neither of the examination reports illustrate that any of the scars measured at least 6 square inches (39 square centimeters), or that either was unstable or painful. The Board recognizes that the October 2018 VA Knee and Leg DBQ report checks of boxes to indicate first there are scars and second that at least one of the scars is "painful, unstable; have a total area equal to or greater than 39 square cm (6 square inches); or are located on the head, face, or neck." However, this examiner also performed an October 2018 VA Scars DBQ, where she concluded that neither scar was painful, or unstable and the measurements were taken and neither scar measured 39 square centimeters. All the VA examiners and the independent medical examiner concluded that the scars did not measure at least 6 square inches (39 square centimeters). The October 2018 VA examiner noted two scars and listed the measurement for scar one as 12 x 3.2 cm and scar two as 13 x 2 cm, which totals 38.4 square centimeters and 26 square centimeters, respectively. The July 2021 VA examiner noted three scars and listed the measurement for scar one as 29 x 0.5 cm, scar two as 10 x 0.1 cm, and scar three as 10 cm x 0.1 cm, which totals 14.5 square centimeters, 1 square centimeter, and 1 square centimeter, respectively. The November 2021 examiner noted three scars and listed the measurement for scar one as 22 x 1 cm, scar two as 21 x 0.2 cm, and scar three as 22 cm x 0.2 cm, which totals 22 square centimeters, 4.2 square centimeters, and 4.4 square centimeters, respectively. As such compensable ratings are not warranted under Diagnostic Codes 7801 or 7802. The VA examiners and the independent medical examiner all concluded that neither scar of the right knee was painful nor unstable. Additionally, the Veteran has not contended that it is painful or unstable. As such a compensable rating is not warranted under Diagnostic Code 7804. The scar does not impact his ability to work, and the probative evidence does not indicate any disabling effects not considered, or functional impairment. As such, a separate or compensable rating is not warranted based on any other provision of the rating schedule, to include Diagnostic Code 7805, at any time during the period of appeal. The Board acknowledges that the Veteran may feel his scar warrants a compensable rating. However, the RO recently assigned a separate, noncompensable rating for the scars in August 2021 and the Veteran has not submitted any statements to describe whether he feels a compensable rating is warranted. Nevertheless, this issue is before the Board and the Veteran would not be competent to assess the level of severity of his scars of the right knee even though he is competent to report his symptoms. The VA examinations and independent examination would outweigh the Veteran's contentions. Given the foregoing, the Board finds that an assignment of a compensable rating for scars of the right knee is denied. REASONS FOR REMAND As mentioned above, with respect to the increased rating claims for instability of the right knee and degenerative joint disease of the right knee, the Board finds that there has not been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268. As such, an additional remand is required. In order to comply with the terms of November 2020 Joint Motion for Partial Remand (JMPR), which the United States Court of Appeals for Veterans' Claims (Court) granted in December 2020, the Board remanded the matters in June 2021, and then again in November 2021. As described in the June 2021 remand, the July 2021 VA examination report did not comply with the directives as the examiner confused what the current disabilities were, failed to explain how he reached his conclusion when assessing the level of severity of two of the right knee disabilities, and did not provide the information as required by Sharp v. Shulkin, 29 Vet. App. 26 (2017). As required by the November 2021 remand directives, an examination and medical opinions were provided in November 2021. Unfortunately, a review of the November 2021 examination and opinions illustrates there has not been substantial compliance with the directives, specifically regarding the instability and degenerative joint disease of the right knee. During the November 2021 Knee and Lower Leg DBQ the independent medical examiner elicited information from the Veteran regarding his reported flare-ups. Despite the examiner noting the severity, frequency, duration of the flare-ups, she did not provide an estimate of motion loss in terms of degrees, nor did she conclude that such estimation could not be given. Instead, the portion of the report responsive to ROM during a flare-up, to include a list of factors that may contribute to functional loss is blank. In Sharp v. Shulkin the Court held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Second, the examiner was asked to provide a retroactive opinion as to the severity of the Veteran's instability and degenerative joint disease of the right knee prior to April 13, 2016. Although the examiner responded by stating "degenerative joint disease, right knee: moderate," she failed to explain how she reached that conclusion, and that vague statement does not provide information sufficient enough to understand what the level of severity was from January 2013 (the beginning of the appeal period) to April 12, 2016. Also, the examiner failed to provide a retroactive opinion as to the severity of the Veteran's instability of the right knee. Lastly, although the examiner noted recurrent subluxation or persistent instability and complete ligament tear of the right knee, she did not state whether such condition existed as of February 7, 2021, and whether it resulted in persistent instability. As such, the Board will again make a request consistent the new criteria in addition to the criteria in effect prior to February 7, 2021. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should forward the claims file, to include a copy of the June 2021 remand, the November 2021 remand, and this remand to an appropriate examiner for addendum opinions with detailed rationale, in compliance with the directives. The examiner is requested to assess the current level of severity of the Veteran's instability and degenerative joint disease of the right knee. The examiner is advised that current level of severity includes any time as of January 2013 to the present. The examiner is asked to provide a retroactive opinion as to the severity of the Veteran's instability and degenerative joint disease of the right knee prior to April 13, 2016, specifically from January 2013 to April 12, 2016. 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 of the right knee. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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, or an opinion regarding flare-ups, symptoms, or functional impairment 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 whether it is due to the examiner not having the knowledge or training. Additionally, the examiner should determine whether the Veteran has or has ever had, as of February 7, 2021, unrepaired or failed repair of complete ligament tear or sprain, incomplete ligament tear, or repaired complete ligament tear that causes persistent instability, and or a diagnosed condition involving the patellofemoral complex with recurrent instability. All opinions and conclusions must be supported by a complete rationale. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page) 2. The AOJ should ensure that the examiner provides all information required for rating purposes and that the opinions conform with the remand directives. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.