Citation Nr: 24011925 Decision Date: 03/13/24 Archive Date: 03/13/24 DOCKET NO. 18-15 816 DATE: March 13, 2024 ORDER Entitlement to a rating in excess of 60 percent for a right knee replacement after June 1, 2018, is denied. REMANDED Entitlement to a rating in excess of 10 percent for post operative residuals of a service-connected torn medial meniscus with degenerative arthritis of the right knee prior to April 11, 2017, is remanded. FINDING OF FACT From June 1, 2018, the Veteran's right knee total replacement disability manifested in no more than residuals of severe painful motion or weakness. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 60 percent for a right knee total replacement disability after June 1, 2018, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a (2023), Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2022 where the issues were remanded for further development. This matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.8009(c). Entitlement to a rating in excess of 60 percent for a right knee replacement after June 1, 2018, is denied. The Veteran was granted service connection for post operative residuals for a right knee torn medical meniscus in a December 1970 rating decision, evaluated as noncompensable with an effective date of October 1970. The Veteran's disability rating was increased to 10 percent effective June 2016. In an April 2018 rating decision, the evaluation of post operative residuals of a right knee torn medial meniscus with degenerative arthritis was increased to 100 percent disabling based on implantation of a right knee prothesis effective April 2017 and an evaluation of 30 percent from June 2018. A July 2023 rating decision increased the Veteran's disability rating to 60 percent effective June 2018. The Veteran contends that he is entitled to a disability rating in excess of 60 percent. The Veteran is in receipt of the maximum schedular rating assignable under Diagnostic Code 5055, the Diagnostic Code used to rate residuals of a total knee replacement, based on severe painful motion and weakness in the right lower extremity. That Diagnostic Code provides that a 100 percent rating is warranted for one year following the prosthetic replacement of a knee joint and that a 60 percent rating warranted thereafter for chronic residuals consisting of severe painful motion or weakness in affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The questions presented are whether an increased schedular rating in excess of 60 percent is assignable under any other Diagnostic Code pertinent to knees, whether a separate rating is assignable for any of the Veteran's knee symptoms other than motion limiting pain and weakness, not contemplated by Diagnostic Code 5055, and whether a rating in excess of 60 percent is assignable on an extraschedular basis. 38 C.F.R. § 3.321 (2019). Diagnostic Codes 5256 to 5263 govern ratings of the knees and provide, at maximum, a 60 percent rating for various knee symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. Therefore, a rating in excess of 60 percent is not assignable under any other Diagnostic Code pertinent to rating disability of the knee. Even if the Board were to consider and separately rate the Veteran for the loss of flexion and extension caused by severe right knee pain and weakness and then combine those ratings, the result would not provide the Veteran a rating in excess of 60 percent. 38 C.F.R. §§ 4.25, 4.71a, Diagnostic Codes 5260, 5261. A separate rating is available under Diagnostic Code 5257, which governs ratings of recurrent subluxation or lateral instability of the knees, because that symptomatology is not considered by Diagnostic Code 5055. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent lateral instability of the knee. A 20 percent rating is warranted for moderate recurrent lateral instability of the knee. A 30 percent rating is warranted for severe recurrent lateral instability of the knee. 38 C.F.R. § 4.71, Diagnostic Code 5257. In accordance with the September 2022 Board remand, the Veteran was afforded a VA examination in January 2023 to determine the current manifestations of his right knee disability. The Veteran endorsed flare-ups, occurring two to three days a week and lasting from two to four hours. The Veteran described the flare-ups as severe. Upon examination, the flexion endpoint was noted at 125 degrees and the extension endpoint was noted as 0 degrees with pain noted on both flexion and extension. The examiner noted that the Veteran's passive ROM was the same as active ROM in both flexion and extension and pain was noted in both flexion and extension. Pain was also noted to cause functional loss by limiting the ROM. There was no evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional functional loss or ROM. Pain was noted to limit functional ability with repeated use over time and ROM was limited to flexion from 115 to 140 degrees and extension from 0 to 5 degrees. Pain, fatigability, and weakness were noted to limit functional ability with flare-ups and ROM was limited to flexion from 115 to 140 degrees and extension from 0 to 5 degrees. There was no ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. An incomplete/partial ligament tear that was successfully repaired was noted. The Veteran's meniscus tear was reported, and symptoms of severe flare-up pain was noted. The VA examiner noted the Veteran's 2016-2017 right total knee replacement with chronic residuals consisting of severe painful motion or weakness. The Veteran endorsed using a cane consistently. The VA examiner reported that the Veteran's right knee disability impacts his ability to perform occupational tasks during acute increased pain episodes of the knee involving frequent bending, lifting, and prolonged standing or walking. Although this examiner did not note where pain begins in the various ROM measurements contained in the examination in violation of Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), the Board finds that as the Veteran is rated at 60 percent disabling for his right knee disability, any higher rating would not be determined by ROM testing and thus remanding for an adequate examination would be futile. After a review of the evidence, the Board finds that the Veteran is not entitled to a separate disability rating for his right total knee replacement. The January 2023 VA examiner denied any right knee instability or recurrent subluxation. Thus, the Veteran is not entitled to a separate disability rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability of the knees. The Board notes that the January 2023 VA examiner indicated that the Veteran did not have recurrent effusion. Notably, Diagnostic Codes 5258 and 5259 apply to the symptomatic residuals of the removal of the meniscus (5259), and the symptoms applicable to a dislocated meniscus, with frequent episodes of locking, pain, and effusion into the joints (5258). Although the Veteran does have a history of a meniscus tear, the evidence does not demonstrate effusion, the January 2023 VA examiner did not report any right knee locking. As a result, the Board finds that a separate rating under Diagnostic Code 5258 is not warranted. Furthermore, as the Veteran is already being compensated for painful movement, separate compensation under Diagnostic Code 5259 would be impermissible pyramiding. The Veteran is not entitled to an extraschedular rating for his right knee disability. The Board finds that the symptomatology and occupational impairment caused by the Veteran's right knee disability are specifically contemplated by the schedular criteria. In the Veteran's January 2023 VA examination, the VA examiner noted that the Veteran would not be equally well served by an amputation with prosthesis. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the evidence is against the claim for a disability rating in excess of 60 percent for his right knee disability. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for post operative residuals of a service-connected torn medial meniscus with degenerative arthritis of the right knee prior to April 11, 2017, is remanded. This matter was previously before the Board in September 2022, where the issue was remanded in order to obtain an addendum opinion to assess the severity of the Veteran's right knee disability prior to April 11, 2017. The Board noted in the September 2022 remand that the December 2016 examiner did not provide a clear explanation as to whether the Veteran experiences functional loss during flare-ups. Specifically, the examiner noted that the Veteran experiences pain in range of motion (ROM) testing, which resulted in functional loss and also remarked that pain could significantly limit functional ability during flare-ups, but the examiner could not state exactly what degree of additional ROM would be due to pain without resort to speculation. The Board stated that a remand was necessary to gather more relevant evidence to assist with rating the Veteran's right knee disability and cited the determination in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), that if a VA examination is not being conducted during a flare-up, the examiner should nevertheless provide an opinion derived from the information obtained during the evaluation as to the additional loss of range of motion that may be present during a flare-up. This Board remand did not conclude that the December 2016 VA examination was inadequate, but rather that it was incomplete because the examiner stopped short from attempting to illicit the needed information, and remand was necessary to gather more relevant evidence to assist with rating the Veteran's right knee disability. In response to the remand, a January 2023 VA addendum opinion was obtained. The opinion stated that the examiner was unable to provide such a retrospective opinion without resort to speculation because the left and right lower extremities have not had ROM assessed and documented since the previous exam in 2016 that was deemed insufficient. The examiner stated that based on the lay statements per the Veteran about how the right knee has been observed to give out causing him to fall and occasionally resulting in minor injury, there is still not sufficient evidence provided to accurately determine the extent, if any, of functional loss of use of the left and right knees due to pain, painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent-such as during flare-ups or prolonged use. This VA examiner, in refusing to give a retrospective opinion stating they could not without resorting to speculation, relied on the fact that the December 2016 exam had been found to be inadequate and therefore the findings in the December 2016 examination could not be considered. As stated above, the December 2016 examination was not found to be inadequate by the Board but was instead considered incomplete because the examiner stopped short from attempting to illicit the needed information regarding flare-ups. The remand directives in the previous September 2022 remand expressly directed the examiner conducting the addendum opinion to consider the findings of the December 2016 VA examination. Therefore, the Board finds that the January 2023 opinion is inadequate as it did not consider the relevant evidence found in the December 2016 examination in formulating their opinion. Accordingly, the Board finds that an addendum opinion is needed to assess the severity of the Veteran's right knee disability prior to April 11, 2017. The matter is REMANDED for the following action: 1. Obtain an addendum opinion to assess the severity of the Veteran's right knee disability prior to April 11, 2017. The examiner should review the virtual file, including a copy of this REMAND. (a) The examiner is to specifically opine on the Veteran's range of motion during flare-ups and after repetitive use for the entire appeal period, including the period prior to April 11, 2017. The Board calls the examiner's attention to the following: --December 2016 VA examination wherein the Veteran reported flare-ups of his right knee with ambulation due to the right knee giving out. --Lay statements indicating that the Veteran's right knee has been observed to give out causing him to fall and occasionally resulting in minor injury. See 10/17/2016, Buddy/Lay Statement; 10/17/2016, Buddy/Lay Statement; 03/13/2018, Buddy/Lay Statement. (b) The examiner is advised that they may use the range of motion testing completed in the December 2016 VA examination as a guide or to inform them in formulating the requested retrospective opinion. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. 2. If upon completion of the above requested development the issue remains denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Cook, 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.