Citation Nr: A24031237 Decision Date: 06/12/24 Archive Date: 06/12/24 DOCKET NO. 240208-415082 DATE: June 12, 2024 ORDER Entitlement to a disability rating in excess of 30 percent for service-connected right knee disability is denied. Entitlement to a disability rating in excess of 30 percent for service-connected left knee disability is denied. Entitlement to a compensable rating for service-connected right knee scar is denied. Entitlement to a compensable rating for service-connected left knee scar is denied. FINDINGS OF FACT 1. The Veteran's right knee prosthetic replacement of the joint has not manifested in chronic residuals consisting of severe painful motion or weakness in the affected extremity, tibial or fibular impairment, ankylosis, or extension of the leg limited to 30 degrees. 2. The Veteran's left knee prosthetic replacement of the joint has not manifested in chronic residuals consisting of severe painful motion or weakness in the affected extremity, tibial or fibular impairment, ankylosis, or extension of the leg limited to 30 degrees. 3. The Veteran's right knee scar is not of an area of 144 sq. in. (929 sq. cm.) or greater and is not unstable or painful. 4. The Veteran's left knee scar is not of an area of 144 sq. in. (929 sq. cm.) or greater and is not unstable or painful. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for service-connected right knee disability have not been met. 38 U.S.C. §§ 1155. 5107; 38 C.F.R. §§ 4.10, 4.40, 4.45. 4.59, 4.71a, Diagnostic Code 5055. 2. The criteria for a disability rating in excess of 30 percent for service-connected left knee disability have not been met. 38 U.S.C. §§ 1155. 5107; 38 C.F.R. §§ 4.10, 4.40, 4.45. 4.59, 4.71a, Diagnostic Code 5055. 3. The criteria for a compensable rating for service-connected right knee scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7802. 4. The criteria for a compensable rating for service-connected left knee scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1958 to June 1960. The rating decision on appeal was issued in February 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the February 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board notes that in the February 2023 rating decision on appeal, the AOJ granted service connection for both bilateral knee disabilities (knee replacement) and bilateral knee scars. The AOJ assigned separate 10 percent disability ratings for each knee, effective August 4, 2022, the date of the Veteran's Intent to File. The AOJ assigned noncompensable ratings for his bilateral knee scars. However, since the filing of this appeal, in a February 2024 rating decision, the AOJ granted increased ratings of 30 percent for each knee, also with an effective date of August 4, 2022. Therefore, the Board must address whether the Veteran is entitled to ratings in excess of 30 percent for each knee disability, along with his claims for increased ratings for his bilateral knee scars. 1. Entitlement to a disability rating in excess of 30 percent for service-connected right knee disability is denied. 2. Entitlement to a disability rating in excess of 30 percent for service-connected left knee disability is denied. The Veteran is currently assigned separate 30 percent ratings for each knee under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055 for knee resurfacing or replacement. Diagnostic Code 5055 pertains to prosthetic replacement of a knee joint. Upon such, 100 percent rating is in effect 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, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. The Veteran is currently assigned the minimum 30 percent rating due to bilateral replacement of knee joints. Under Diagnostic Code 5256 for ankylosis of the knee, a 30 percent rating is assigned for ankylosis with favorable angle in full extension, or in slight flexion between 0 and 10 degrees. A 40 percent rating is assigned for flexion between 10 and 20 degrees. A 50 percent rating is assigned for flexion between 20 and 45 degrees. A 60 percent rating is assigned for extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more. Under Diagnostic Code 5261 for limitation of extension, a noncompensable rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 20 degrees; a 30 percent rating is assigned for extension is limited to 20 degrees; a 40 percent rating is assigned for extension is limited to 30 degrees; and a 50 percent rating is assigned for extension is limited to 15 degrees. Diagnostic Code 5262 applies to ratings for impairment of the tibia and fibula. Turning to the evidence, the Board notes that the Veteran has undergone one VA knee and lower leg conditions examination that the Board is able to consider as part of this decision. In the December 2022 VA examination, the examiner diagnosed the Veteran with total knee replacement of both the right and the left legs. See December 2022 C&P Examination, p. 3. The Veteran reported flare-ups of the knee, indicating that they occur once or twice a week for 10 to 15 minutes. Id. at 4. He experiences jerking and spasm without pain during flare-ups. Id. He uses over-the-counter medication to alleviate the symptoms. Id. Regarding functional loss and impairment, the Veteran stated that he cannot walk without a walker or wheelchair and that he cannot climb stairs. Id. He requires assistance dressing himself and has difficulty bending. Id. The Veteran did not report any history of instability, recurrent subluxation, or frequent effusion of the knee. The examiner noted normal initial range of motion (ROM) measurements of the right knee: flexion to 140 degrees and extension to 0 degrees. Id. at 5. Left knee initial ROM was abnormal, indicating flexion to 70 degrees and extension to 0 degrees. Id. at 7. The Veteran was able to perform repetitive-use testing of the right knee with at least three repetitions without any additional loss of function or ROM. Id. at 8. The Veteran was unable to perform repetitive-use testing of the left knee with at least three repetitions due to pain. Id. Procured evidence suggested that pain and fatigability significantly limited functional ability of the right knee with repeated use over time. Id. at 9. Right knee ROM after repeated use over time was estimated to result in flexion to 80 degrees and extension to 0 degrees. Id. Procured evidence suggested that pain, fatigability, and lack of endurance significantly limited functional ability of the left knee with repeated use over time. Id. at 9. Left knee ROM after repeated use of time was estimated to result in flexion to 60 degrees and extension to 0 degrees. Id. Procured evidence suggested that pain and fatigability significantly limited functional ability of both knees with flare-ups. Id. at 9. However, estimated ROM measurements during flare-ups were not provided for either knee by the examiner per the Veteran's request due to pain. Id. at 11. The examiner found that the Veteran did not have ankylosis of either knee. Id. at 13. The examiner also found that the Veteran did not have any tibial or fibular impairment of either knee. Id. at 15-16. Examination also did not indicate any meniscal condition of either knee. Id. at 16. The examiner noted that the Veteran underwent a total knee joint replacement of the right knee in 2013 and of the left knee in 2015. Id. at 17. For both knees, the examiner found that the Veteran experienced intermediate degrees of residual weakness, pain, or limitation of motion. The examiner declined to find that the Veteran experienced chronic residuals consisting of severe painful motion of weakness of either knee. Id. As outlined above, because the evidence indicates that the Veteran has undergone total knee replacement of both knees, he is entitled to a minimum evaluation of 30 percent for each knee. See 38 C.F.R. § 4.71a, DC 5055. However, the December 2022 VA examiner found that the Veteran experienced intermediate degrees of residual weakness, pain, or limitation of motion, requiring the Board to determine whether a rating in excess of 30 percent may be assigned by rating under analogy under DCs 5256, 5261, or 5262. The Board again notes that DC 5256 is assigned for ankylosis of the knee and DC 5262 is assigned for impairment of the tibia and fibula. As outlined above, the December 2022 VA examiner found that the Veteran did not have ankylosis of either knee or impairment of the tibia or fibula of either knee. There is no further evidence of record indicating that the Veteran has such symptomatology of either knee. Therefore, a rating by analogy under DC 5256 and 5262 are unavailable as they are not indicated by the evidence of record. The only remaining rating by analogy available is DC 5261, limitation of extension of the leg. As discussed above, an increased 40 percent rating is assigned when the evidence reflects extension of the leg limited to 30 degrees. However, ROM testing in the December 2022 VA examination did not indicate any extension limited to 30 degrees or more of either knee. There is no other evidence of record indicating such limitation of extension. Therefore, a rating in excess of 30 percent may not be assigned by analogy under DC 5261. Under DC 5055, an increased 60 percent disability rating may be assigned if the evidence reflects chronic residuals of knee replacement consisting of severe painful motion or weakness in the affected extremity. The Board notes, however, that the December 2022 examiner declined to find that the Veteran experienced such a level of disability. There is no additional evidence of record that the Board may consider that satisfies this level of disability. Accordingly, as the criteria for an increased disability rating under DC 5055 have not been met, the Board must deny the Veteran's claim for increased ratings for both knees. 3. Entitlement to a compensable rating for service-connected right knee scar is denied. 4. Entitlement to a compensable rating for service-connected left knee scar is denied. The Veteran is currently assigned noncompensable ratings for his service-connected scars of both knees since August 4, 2022, the entire period on appeal. His scars are assigned ratings under 38 C.F.R. § 4.118, DC 7802. Under DC 7802, a 10 percent rating is warranted when the area of the scars covers 144 square inches (929 square centimeters) or greater. Additionally, DC 7804 provides disability ratings for scars that are unstable or painful with a 10 percent rating assigned for one to two scars. 38 C.F.R. § 4.118. The claims file contains one VA scars and disfigurement examination that the Board may consider. In the December 2022 examination, the examiner diagnosed the Veteran with right and left knee scars, status post bilateral knee replacement. See December 2022 C&P Examination, p. 2. The examiner found that none of the scars of the extremities were painful or unstable. Id. at 3. The Veteran's right knee scar measured 7 cm. long and 0.5 cm. wide. Id. at 5. The Veteran's left knee scar measured 8 cm. long and 0.5 cm. wide. Id. The total area of the two scars combined is 7.5 square centimeters. There is no other evidence of record indicating that the Veteran's bilateral knee scars total 929 square centimeters or greater, a requirement for a compensable 10 percent rating under DC 7802. Therefore, a compensable rating under DC 7802 is unavailable. 38 C.F.R. § 4.118. The Board also notes that the VA examiner found that the Veteran's bilateral knee scars were neither unstable nor painful. There is no further evidence that the Board may consider that indicates that these scars are unstable or painful. Therefore, a compensable 10 percent rating under DC 7804 is also unavailable. Id. Accordingly, as increased ratings are not available under either DCs 7802 or 7804, the Board must deny the Veteran's claims for compensable ratings for scars of either knee. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.