KNEE IMPAIRMENT OF

T.D. JONES · 2022 · Case ID: 22035804

MIXED

Summary

The Veteran, who served in the United States Navy from September 1982 to September 2003, appeals the denial of increased disability ratings for bilateral knee osteoarthritis and residuals of total knee replacement. The Board previously remanded the claim multiple times for inadequate examinations and to obtain private medical records. The Veteran sought higher ratings for her right knee prior to October 27, 2014, and her left knee prior to July 21, 2014, and for increased ratings for residuals of total knee replacement from December 1, 2015, for the right knee and September 1, 2015, for the left knee. The Board reviewed VA examinations from November 2008, August 2013, January 2014, October 2016, April 2018, March 2020, and May 2021, along with private treatment records. For the period prior to the total knee replacements, the Board found the evidence did not support ratings higher than 10 percent for either knee, citing consistent findings of mild limitations in range of motion and no objective evidence of instability or ankylosis. For the period after the knee replacements, the Board found the evidence regarding chronic residuals of severe painful motion or weakness to be in approximate balance, thus resolving doubt in the Veteran's favor. Consequently, the Board granted a 60 percent evaluation for the right knee from December 1, 2015, and for the left knee from September 1, 2015, noting this is the maximum evaluation under Diagnostic Code 5055 for such residuals.

Rationale

Evidence did not support ratings higher than 10% for ROM limitations prior to Oct 27, 2014.; November 2008 VA exam showed 0-120 ROM, pain at 90 degrees flexion.; August 2013 and January 2014 treatment records showed mild crepitus, tenderness, and pain, but no significant ROM limitations.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5055

Docket No.

11-05 648

Full Decision Text

Citation Nr: 22035804
Decision Date: 06/21/22 Archive Date: 06/21/22

DOCKET NO. 11-05 648
DATE: June 21, 2022

ORDER

Entitlement to a disability rating greater than 10 percent prior to October 27, 2014 for right knee osteoarthritis is denied.

Entitlement to a disability rating greater than 10 percent prior to July 21, 2014 for left knee osteoarthritis is denied.

Entitlement to an evaluation of 60 percent, but no higher, from December 1, 2015 for right knee arthritis, post total knee replacement (right knee disability) is granted.

Entitlement to an evaluation of 60 percent, but no higher, from September 1, 2015 for left knee arthritis, post total knee replacement (left knee disability) is granted.

FINDINGS OF FACT

1. Prior to October 27, 2014, the Veteran's right knee osteoarthritis manifested with pain, flexion limited to no more than 90 degrees, extension to no worse than 0 degrees, and no objective evidence of instability, subluxation, or ankylosis.

2. Prior to July 21, 2014, the Veteran's left knee osteoarthritis manifested with pain, flexion limited to no more than 90 degrees, extension to no worse than 5 degrees, and no objective evidence of instability, subluxation, or ankylosis.

3. Since December 1, 2015, the Veteran's residuals of right total knee replacement have manifested with chronic residuals consisting of severe painful motion or weakness in the affected extremity.

4. Since September 1, 2015, the Veteran's residuals of left total knee replacement have manifested with chronic residuals consisting of severe painful motion or weakness in the affected extremity.

CONCLUSIONS OF LAW

1. Prior to October 27, 2014, the criteria for a rating in excess of 10 percent for a right knee disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5261.

2. Prior to July 21, 2014, the criteria for a rating in excess of 10 percent for a left knee disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5261.

3. Since December 1, 2015, the Veteran's right knee disability has met the criteria for a 60 percent evaluation. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055.

4. Since September 1, 2015, the Veteran's left knee disability has met the criteria for a 60 percent evaluation. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from September 1982 to September 2003.

These matters come before the Board of Veterans Appeals (Board) on appeal from a December 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

Since then, the Board has remanded the claim for further development in September 2014, November 2017, December 2019, February 2021, and December 2021for reasons including inadequate VA medical examinations, evidence of worsening symptoms requiring updated examinations, and changes in the law that made obtaining additional information necessary for a determination.

The most recent remand, in December 2021, finally acknowledged the Veteran's most recent VA examination (from March 2021) as adequatebut noted that the Veteran had private medical treatment records related to her knees that had not been obtained. The Board instructed the RO to obtain these treatment records, to ensure that VA's duty to assist the Veteran had been met, and that all medical evidence was available to the Board before a final decision was reached. See 38 CFR § 3.159(c). These records have since been furnished, and the Board may proceed with a decision. See Stegall v. West, 11 Vet. App.
examinations, and changes in the law that made obtaining additional information necessary for a determination.

The Board notes that the Veteran received a 100 percent evaluation for her right knee from October 27, 2014 to December 1, 2015, and a 100 percent evaluation for her left knee from July 21, 2014 to September 1, 2015. As these represent a full grant of benefits sought and the Veteran has not appealed the effective dates of these awards, those periods are not on appeal for the respective knees.

Increased Ratings

Disability evaluations are determined by comparing the manifestations of a disability with the criteria set forth in the Diagnostic Codes (DCs) of the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. § Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1.

The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate ratings may be assigned to different conditions if they do not constitute the same disability or manifestation thereof. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt shall be resolved in favor of the claimant. 38 C.F.R. § 4.3.

A schedular rating may be increased if there is objective evidence during examination or treatment of functional loss exceeding that fixed by a schedular rating. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v Shinseki, 25 VA 32 (2011); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016).

Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).

1. Evaluation of right knee prior to October 27, 2014

2. Evaluation of left knee prior to from July 21, 2014
785 (Fed. Cir. 2016).

1. Evaluation of right knee prior to October 27, 2014

2. Evaluation of left knee prior to from July 21, 2014

For this stage of the appeal, the Veteran's knee disabilities are rated under DC 5260 for limitation of flexion, and DC 5261 for limitation of extension.

Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A maximum 30 percent rating is warranted for flexion limited to 15 degrees or less. 38 C.F.R. § 4.71a, DC 5260.

Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A maximum 50 percent rating is warranted for extension limited to 45 degrees or more. 38 C.F.R. § 4.71a, DC 5261.

After reviewing all available records related to the Veteran's knees relevant to this stage of the appeal, the Board finds no objective evidence that the Veteran's ROM in either knee was limited to a sufficient degree to warrant a higher evaluation under the applicable diagnostic codes during this stage of the appeal.

The Veteran underwent a VA medical examination in November 2008. The November 2008 examination noted a range of motion (ROM) of 0 degrees extension to 120 degrees flexion, with pain beginning at 90 degrees flexion, for both the right and left knee, for both active and passive motion. The examiner found no additional loss of ROM on repeated use over time, and stated there were no flare-ups. Instability, crepitus, meniscus abnormality, and patellar abnormalities were denied. The Board never found this examination inadequatea new one was ordered in the September 2014 only because there were indications the Veteran's disability had worsenedand now finds it to be probative evidence of the severity of the Veteran's disability at the time of the examination.

An August 2013 examination done for treatment purposes showed a ROM of 0 degrees extension to 115 degrees flexion in both knees. Crepitus and tenderness were observed, but no effusion or instability. "Significant" progressive knee pain was noted.

A January 2014 examination done for treatment purposes showed a ROM of 0 degrees extension to 100 degrees flexion in the right knee, and 5 degrees extension to 105 degrees flexion in the left knee. Bilateral knee pain and tenderness was noted, but there were no visible knee abnormalities.

The available medical evidence consistently shows that, prior to October 27, 2014 for the right knee and July 21, 2014 for the left, the Veteran's knees did not exhibit a ROM limited enough to warrant a compensable rating under DCs 5260 or 5261. She could only be granted a minimum 10 percent rating for painful motion as per 38 C.F.R. § 4.59.

The Veteran has not been found to have any symptoms which would allow for a separate or higher rating under any other DC during this stage of the appeal. A higher or separate rating would not be warranted under DC 5256, as the evidence reflects that no ankylosis is present. The Veteran also has not been found to have recurrent subluxation, lateral instability, impairment of the tibia/fibula, genu recurvatum, or a meniscus disorder at any time. See 38 C.F.R. § 4.71a, DCs 5257, 5258, 5259, 5262, 5263. The Veteran has not been found to have unrepaired or failed repair of a ligament tear, ligament sprain, or a diagnosed patellar condition causing instability, which would allow for a separate rating under the 202
. A higher or separate rating would not be warranted under DC 5256, as the evidence reflects that no ankylosis is present. The Veteran also has not been found to have recurrent subluxation, lateral instability, impairment of the tibia/fibula, genu recurvatum, or a meniscus disorder at any time. See 38 C.F.R. § 4.71a, DCs 5257, 5258, 5259, 5262, 5263. The Veteran has not been found to have unrepaired or failed repair of a ligament tear, ligament sprain, or a diagnosed patellar condition causing instability, which would allow for a separate rating under the 2021 revised version of DC 5257. 38 C.F.R. § 4.71a, DC 5257 (2021).

The Board acknowledges the Veteran's testimony regarding pain and difficulty standing and walking due to her bilateral knee disability. However, the Board is not in a position to make medical judgments, and without any way to understand the progression of the Veteran's knee disability in terms of limitation of ROM or other objective indicators, the Board cannot increase her disability evaluation by an arbitrary amount. There is no evidence during this period indicating that the Veteran had a restriction of range of motion, including due to pain or during flare ups, which would allow for any higher rating. The RO and the Board are bound by applicable laws and regulations promulgated by the VA. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Consideration of factors wholly outside the schedular rating criteria would constitute error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Due to the above, the Board finds that an evaluation of the Veteran's left knee disability in excess of 10 percent is not warranted prior to July 21, 2014, and an evaluation of her right knee disability in excess of 10 percent is not warranted prior to October 27, 2014. As the evidence is persuasively against the Veteran's claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

3. Evaluation of right knee from December 1, 2015

4. Evaluation of left knee from September 1, 2015

The Veteran underwent a right knee replacement in October 2014, and was granted a 100 percent evaluation for the year thereafter. 38 C.F.R. §§ 4.30, 4.71a, DC 5055. Because the 100 percent rating assigned for the Veteran's service-connected right knee disability is the maximum rating available, a higher rating from October 27, 2014 to December 1, 2015 is not on appeal.

Notably, effective February 7, 2021, VA revised the criteria for "knee instability" and "knee replacement" under DCs 5257 and 5055. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4. 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).

If a law or regulation changes during the pendency 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 Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, DC 5055, which governs knee replacement (prosthesis), provides that for one year following implantation of the prosthesis, the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic
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 Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, DC 5055, which governs knee replacement (prosthesis), provides that for one year following implantation of the prosthesis, the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to DCs 5256, 5261 or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a, DC 5055.

As of February 7, 2021, under the amended criteria, DC 5055 (knee, resurfacing or replacement (prosthesis) notes that at the conclusion of the 100 percent evaluation period evaluate resurfacing under DCs 5256 through 5262; there is no minimum evaluation for resurfacing. Residuals of total knee replacement (the procedure undergone by the Veteran) are evaluated as they were prior to the change.

While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the amendments did not change the criteria under DCs 5256, 5258, 5259, 5260, or 5261.

The Veteran's first VA examination following the expiration of the 100 percent evaluation for both knees was in October 2016. During this examination, the Veteran described "residual symptoms like shooting pain to my knees and knees giving out without notice, causing me to fall periodically." These falls were later described as "occasional." The examiner noted swelling, disturbance of locomotion, and less movement than normal in the right knee. Disturbance of locomotion, instability of station, interference with standing, and less movement than normal were noted in the left. Subluxation and lateral instability were denied in both knees, and joint stability testing was normal. Ankylosis was denied in both knees, as was the presence of a meniscal condition.

The October 2016 examiner summarized the Veteran's condition as showing "intermediate degrees of residual weakness, pain or limitation of motion" in both knees. The examiner documented an initial ROM of 0 degrees extension to 110 degrees flexion in the right knee, and 0 degrees extension to 100 degrees flexion in the left; however, the examiner failed to clarify whether there was further limitation of ROM after repeated use over time and during flare-ups, making these ROM measurements inadequate for the Board to base its decision on.

The Veteran also underwent VA examinations for her knees in April 2018 and March 2020, which were found in prior Board remands to be inadequate. These examinations did not show more severe residuals than those noted in the October 2016 VA examination. The greatest limitation of motion documented in any of the Veteran's records was during her May 2021 VA medical examination, which showed a range of motion from 0 degrees extension to 90 degrees flexion in both knees after repeated use over time.

An August 2016 medical record documenting a surgical follow-up appointment describes the Veteran as having "intermittent" knee pain, and "barely taking" pain medication. In August 2017, the Veteran told a treatment provider that she had fallen twice in the last four months due to muscle weakness in her knees. An August 2018 medical record stated that her knees gave out "frequently," with pain "on and off." The August 2018 provider found no tenderness or limited ROM on examination, and the Veteran stated that her bilateral knee replacement had had "good results." An August 2019 medical record noted "pain on and off, worse pain in right knee."

In March 2019, the Veteran told a private treatment provider that her knee pain "had not gone away" since her knee surgery, and that her pain was "10/10" without medication and "3-4/10" with prescription medication. She described her pain as "constant" and said it worsened with standing, pushing, or pulling. She said her pain had not worsenedi.e., it had been at this level of constancy and severity for some time.

The available evidence gives an inconsistent picture as to the severity of the Veteran's right and left
Veteran stated that her bilateral knee replacement had had "good results." An August 2019 medical record noted "pain on and off, worse pain in right knee."

The available evidence gives an inconsistent picture as to the severity of the Veteran's right and left knee disabilities following her total knee replacements, whether this severity markedly increased prior to May 2021, and if so, when. The Board finds that the evidence is in approximate balance as to whether the Veteran suffered "chronic residuals consisting of severe painful motion or weakness" in her knees following her total knee replacement, and therefore will grant a 60 percent evaluation for her right knee from December 1, 2015, and a 60 percent evaluation for her left knee from September 1, 2015.

A 60 percent evaluation is the highest evaluation that can be granted under DC 5055 following the expiration of the temporary 100 percent evaluation. There are no applicable DCs that would allow an evaluation in excess of 60 percent for the Veteran's right or left knee disabilities.

T.D. JONES

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Shermila Sundquist

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.

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