Citation Nr: 22018744
Decision Date: 03/30/22	Archive Date: 03/30/22

DOCKET NO. 16-37 205
DATE: March 30, 2022

ORDER

An initial disability rating higher than 10 percent prior to September 27, 2019, for the service-connected residuals of a right knee meniscal tear with osteoarthritis is denied.

A disability rating higher than 60 percent from November 1, 2020, for the service-connected right total knee replacement is denied.

An initial disability rating higher than 10 percent prior to August 9, 2017, for the service-connected degenerative arthritis of the left ankle status post arthroscopy is denied.

A disability rating of 20 percent, other than during a convalescent period, from August 9, 2017, to December 3, 2019, for the service-connected degenerative arthritis of the left ankle status post arthroscopy is granted.

A disability rating higher than 20 percent, other than during a convalescent period, from December 4, 2019, for the service-connected degenerative arthritis of the left ankle status post arthroscopy is denied.

FINDINGS OF FACT

1. Prior to September 27, 2019, the residuals of the Veteran's right knee meniscal tear with osteoarthritis had been manifested by flexion to 85 degrees at worst and extension to 5 degrees at worst.

2. From November 1, 2020, the Veteran has been in receipt of the highest available schedular rating for the service-connected right total knee replacement.

3. Prior to August 9, 2017, the Veteran's degenerative arthritis of the left ankle status post arthroscopy had not been manifested by marked limitation of motion of the ankle.

4. From August 9, 2017 to December 3, 2019, the Veteran's degenerative arthritis of the left ankle status post arthroscopy had been manifested by marked limitation of motion of the ankle.

5. From December 4, 2019, the Veteran's degenerative arthritis of the left ankle status post arthroscopy has not been manifested by ankylosis of the ankle.

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating higher than 10 percent prior to September 27, 2019 for the service-connected residuals of a right knee meniscal tear with osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5260, 5261.

2. The criteria for a disability rating higher than 60 percent from November 1, 2020 for the service-connected right total knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5055.

3. The criteria for an initial disability rating higher than 10 percent prior to August 9, 2017 for the service-connected degenerative arthritis of the left ankle status post arthroscopy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271.

4. The criteria for a disability rating of 20 percent, but no higher, from August 9, 2017 to December 3, 2019, other than during a convalescent period, for the service-connected degenerative arthritis of the left ankle status post arthroscopy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271.

5. The criteria for a disability rating higher than 20 percent, other than during a convalescent period, from December 4, 2019 for the service-connected degenerative arthritis of the left ankle status post arthroscopy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In a May 2019 decision, the Board of Veterans' Appeals (Board) granted another issue then on appeal and remanded the remaining issues for further development. In June 2021, the Board remanded the issues on appeal for further development and adjudication. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999).

In March 2022, after certification of the appeal to the Board, additional medical records, including VA examination reports, pertinent to the claims on appeal were added to the claims file. In subsequent March 2022 correspondence, the Veteran's representative waived initial review of the evidence by the Agency of Original Jurisdiction (AOJ). Thus, the Board will consider the evidence in the first instance in adjudicating the claims.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, 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.

Right Knee Disability

Effective January 29, 2014, the Veteran's right knee disability (residuals of a right knee meniscal tear with osteoarthritis) has been rated 10 percent under Diagnostic Code 5003-5260. 38 C.F.R. § 4.71a. His knee disability was evaluated as residuals under Diagnostic Code 5260 for limitation of leg flexion. 38 C.F.R. § 4.27. On September 27, 2019, he underwent total knee arthroplasty, or replacement, and was assigned a 100 percent rating under Diagnostic Code 5055 effective that date. From November 1, 2020, his right total knee replacement has been rated 60 percent. 38 C.F.R. § 4.71a.

Diagnostic Code 5055 for knee replacement (prosthesis) provides for a 100 percent rating for prosthetic replacement of a knee joint for 1 year following implantation of the prosthesis. Thereafter, a 60 percent rating is available for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to Diagnostic Code 5256, 5261 or 5262, with a minimum rating of 30 percent.

Under Diagnostic Code 5260, flexion limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a maximum 30 percent rating. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a maximum 50 percent rating. 38 C.F.R. § 4.71a.

Normal knee joint motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee. Where a veteran has both compensable limitation of flexion and compensable limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04.

Effective February 7, 2021, VA revised the regulations pertaining to the evaluation of disabilities of the musculoskeletal system, including those of the knee. 85 Fed. Reg. 76460 (Nov. 30, 2020). While changes were made to Diagnostic Code 5257 for other impairment of the knee and Diagnostic Code 5262 for impairment of the tibia and fibula, as will be seen below, there is no evidence that the Veteran in this appeal has recurrent subluxation or instability, or patellar instability, or malunion or nonunion of the tibia and fibula. Thus, neither the former nor revised versions of these codes are applicable in this case.

While changes were made to Diagnostic Code 5055, the amendments only added knee resurfacing and shortened the duration of the 100 percent rating following resurfacing or replacement. The Veteran had a replacement and has benefited from the longer 1 year duration provided under the former rating criteria. Thus, with no substantive changes in the evaluation of the disability itself, the revision has no effect in this case.

At a March 2015 VA examination, the Veteran reported continuous right knee pain, with flare-ups two times per month that last for l0 hours, for which he takes Aleve with good relief. He stated that he works as a painter on the assembly line at a car manufacturer and the right knee pain makes it difficult to complete tasks. Range of motion testing revealed right knee flexion to 120 degrees and extension to 0 degrees. Repetitive use testing revealed no additional functional loss or range of motion. The examiner noted swelling and interference with sitting and standing. Muscle strength was normal. The Veteran denied a history of recurrent subluxation and lateral instability but noted weekly swelling. Examination did not reveal any instability in the right knee. The examiner noted a history of arthroscopic debridement of the lateral meniscus with residuals of pain and loss of range of motion. The Veteran reported regular use of a brace.  The examiner indicated that the Veteran's right knee disability impacts his ability to perform occupational tasks as he has knee pain when working on the assembly line.

A March 2015 private treatment record shows complaints of right knee pain that is aggravated by prolonged standing and walking on the assembly line at work. The physician indicated that range of motion testing revealed extension to 5 degrees but did not provide a finding for flexion. An April 2016 treatment record shows flexion to 110 degrees and extension to 5 degrees. 

A March 2015 VA treatment record shows complaints of right knee pain and grossly intact range of motion. May 2016 and June 2016 treatment records indicate normal range of motion. A December 2017 record shows flexion to 120 degrees and extension to 0 degrees. An April 2019 record shows flexion to 120 degrees and extension to 0 degrees. A June 2019 record shows flexion to 115 degrees and extension to 5 degrees. A September 2019 record prior to surgery shows flexion to 85 degrees and extension to 0 degrees.

By way of history, a March 2015 rating decision assigned a 10 percent rating for the right knee disability under Diagnostic Code 5003-5260. 38 C.F.R. § 4.71a. His disability was evaluated as residuals under Diagnostic Code 5260 for limitation of leg flexion. 38 C.F.R. § 4.27. At that time, there was evidence of degenerative arthritis established by X-ray findings and noncompensable limitation of motion. Thus, the 10 percent rating was actually awarded pursuant to Diagnostic Code 5003 for degenerative arthritis. In that regard, as the Veteran is receiving at least a 10 percent rating each for his low back and left ankle disabilities, a higher rating under this code, via combining a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, is not warranted.

In terms of limitation of motion, even considering functional loss due to pain and other factors, the residuals of the Veteran's a right knee meniscal tear with osteoarthritis had been manifested by flexion to 85 degrees at worst and extension to 5 degrees at worst. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. VA. 202 (1995). Those findings do not even warrant a 0 percent rating under Diagnostic Code 5260 and only warrant a 0 percent rating under Diagnostic Code 5261. While the Veteran is competent to report on his pain and resultant limitation of motion, the objective evidence fails to show that he had the necessary limitation of range of motion to warrant a compensable rating under Diagnostic Code 5260 or 5261. Layno v. Brown, 6 Vet. VA. 465 (1994).

Accordingly, the Board concludes that an initial disability rating higher than 10 percent prior to September 27, 2019 for the service-connected residuals of a right knee meniscal tear with osteoarthritis is not warranted. As the evidence of record persuasively weighs against the claim, the claim must be denied. 38 U.S.C. § 5107(b).

On September 27, 2019, the Veteran underwent right total knee replacement and was assigned a 100 percent rating under Diagnostic Code 5055 through October 31, 2020. From November 1, 2020, his right total knee replacement has been rated 60 percent.

Under Diagnostic Code 5055, after the one year following implantation of the prosthesis, a 60 percent rating is the maximum available for chronic residuals of total knee replacement. Thus, a higher rating under this code is not warranted.

Additionally, a disability rating higher than 60 percent is not available for the Veteran's right knee disability because such a rating would exceed the maximum 60 percent allowable under the "amputation rule." 38 C.F.R. §§ 4.25, 4.68, 4.71a, Diagnostic Codes 5162 to 5164. Under the "amputation rule," the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. As 60 percent is the maximum disability rating the Veteran can receive under the amputation rule for a knee disability, no higher disability rating is available, and a discussion of ratings under other potentially applicable Diagnostic Codes is not warranted.

The Board therefore finds that the criteria for a higher rating for the service-connected right total knee replacement have not been met at any time during the rating period, as there is no higher schedular rating available than that currently assigned.

Left ankle disability

Effective January 29, 2014, the Veteran's left ankle disability (degenerative arthritis of the left ankle status post arthroscopy) has been rated 10 percent under Diagnostic Code 5271. 38 C.F.R. § 4.71a. On August 17, 2018, he underwent arthroscopic surgery and was assigned a 100 percent rating effective that date. From November 1, 2018, the 10 percent rating was resumed. From December 4, 2019, his disability has been rated 20 percent. On February 19, 2021, he underwent further arthroscopic surgery and was assigned a 100 percent rating effective that date. From June 1, 2021, the 20 percent rating was resumed.

Under Diagnostic Code 5271, marked limitation of motion of the ankle warrants a 20 percent rating and moderate limitation of motion of the ankle warrants a 10 percent rating. 38 C.F.R. § 4.71a.

Effective February 7, 2021, VA revised Diagnostic Code 5271 to clarify existing VA practice that marked limitation of motion of the ankle was less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion and moderate limitation of motion of the ankle was less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. 85 Fed. Reg. 76,460 (Nov. 30, 2020).

Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion.  38 C.F.R. § 4.71, Plate II.

Thus, to warrant a higher 20 percent rating prior to December 4, 2019, there must be marked limitation of motion of the ankle.

At a March 2015 VA examination, the Veteran reported continuous left ankle pain, with flare-ups once per week, for which he takes Aleve. He stated that he works as a painter on the assembly line at a car manufacturer and the left ankle pain makes it difficult to move around at work. Range of motion testing revealed dorsiflexion to 15 degrees and plantar flexion to 40 degrees. Repetitive-use testing revealed no additional loss of function or range of motion. The examiner stated that the Veteran's left ankle disability makes it difficult to move around at work.

A March 2015 private treatment record shows complaints of left ankle pain that is aggravated by weightbearing, prolonged walking and going downstairs and a finding of full range of motion. 

A March 2015 VA treatment record shows complaints of left ankle pain and grossly intact range of motion. May 2016 and June 2016 treatment records indicate normal range of motion. An August 2017 record shows dorsiflexion to less than 0 degrees and plantar flexion to 40 degrees. October 2017 physical therapy notes show that dorsiflexion was less than 0 degrees. A November 2017 record shows dorsiflexion to 0 degrees and plantar flexion to 47 degrees. A June 2018 record shows that dorsiflexion was just slightly less than in the right ankle and plantar flexion was about equal. An August 2018 record prior to surgery shows that there was good dorsiflexion and plantar flexion. Then, an April 2019 record shows that there was good range of motion of the left ankle. 

Initially, the Board observes that from August 2017 the Veteran's left ankle disability had been manifested by dorsiflexion to less than 0 degrees. October and November 2017 treatment records continue to show that there was dorsiflexion to less than 0 degrees. While August 2018 and April 2019 records indicate that there was good range of motion, the actual range of motion findings are not provided. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that his degenerative arthritis of the left ankle status post arthroscopy had been manifested by marked limitation of motion of the ankle from the date of the August 2017 VA treatment record, or August 9, 2017, through December 3, 2019, the day prior to the date the disability already has been rated 20 percent. 38 U.S.C. § 5107(b). However, with no evidence of ankylosis of the ankle, an even higher 30 percent rating is not warranted.

Prior to August 9, 2017, even considering functional loss due to pain and other factors, the Veteran's left ankle disability had not been manifested by marked limitation of motion of the ankle.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Examination revealed dorsiflexion to 15 degrees and plantar flexion to 40 degrees, even after repetition. Those findings do not meet the criteria for a higher 20 percent rating for marked limitation of motion. While the Veteran is competent to report on his pain and resultant limitation of motion, the objective evidence fails to show that he had the necessary limitation of range of motion to warrant a higher 20 percent rating for the left ankle disability prior to August 9, 2017. Layno, 6 Vet. App. 465.

The remaining question is whether a disability rating higher than 20 percent is warranted from December 4, 2019. While Diagnostic Code 5270 for ankylosis of the ankle provides for a higher 30 percent rating, the ankle must be ankylosed in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a. However, while range of motion of the left ankle, particularly dorsiflexion, is markedly reduced, the left ankle retains some range of motion. December 2019, September 2021 and March 2022 VA examiners all indicated that there was no ankylosis of the left ankle. Thus, with no ankylosis, a higher rating under Diagnostic Code 5270 is not warranted.

Accordingly, the Board has resolved the benefit of the doubt in granting a higher 20 percent rating for the service-connected degenerative arthritis of the left ankle status post arthroscopy from August 9, 2017 to December 3, 2019. However, as the evidence of record persuasively weighs against an initial disability rating higher than 10 percent prior to August 9, 2017 and higher than 20 percent from December 4, 2019, those aspects of the claim must be denied. 38 U.S.C. § 5107(b).

 

 

R.R. WATKINS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. W. Kim, 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.