Citation Nr: 18160513
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 13-02 680
DATE:	December 27, 2018
ORDER
1. Entitlement to a rating in excess of 10 percent, prior to October 20, 2015, for the Veteran’s service-connected right knee disability, based on pain, tenderness, and limitation of motion, is denied.
2. Entitlement to a separate rating of 10 percent, prior to October 20, 2015, for the Veteran’s service-connected right knee disability based on instability, is granted, subject to the laws and regulations governing the payment of monetary benefits.
3. Entitlement to a separate rating of 20 percent, prior to October 20, 2015, for the Veteran’s service-connected right knee disability based on dislocated semilunar cartilage, is granted, subject to the laws and regulations governing the payment of monetary benefits.
4. Entitlement to a rating in excess of 30 percent effective from December 1, 2016, for the Veteran’s service-connected right knee total arthroplasty, is denied.
FINDINGS OF FACT
1. Effective prior to October 20, 2015, the Veteran’s right knee disability was manifested by chronic pain, arthritis, tenderness, crepitus, limitation of motion, pain on motion, gait impairment, and limitations on activities.
2. Resolving reasonable doubt in the Veteran’s favor, prior to October 20, 2015, his service-connected right knee disability manifested slight instability.
3. Resolving reasonable doubt in favor of the Veteran, prior to October 20, 2015, his service-connected right knee disability manifested symptoms related to dislocated semilunar cartilage including frequent episodes of locking and effusion.
4. Effective from December 1, 2016, the Veteran’s service-connected right knee total arthroplasty was manifested by no more than right knee pain.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent, prior to October 20, 2015, for the service-connected right knee disability, based on pain, tenderness, and limitation of motion, have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes (DCs) 5010, 5260, 5261.
2.  The criteria for a separate 10 percent rating, prior to October 20, 2015, for the service-connected right knee disability, based on instability, have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5257.
3. The criteria for a separate 20 percent rating, prior to October 20, 2015, for the service-connected right knee disability, based on dislocated semilunar cartilage, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5258. 
4. The criteria for a rating in excess of 30 percent, effective from December 1, 2016, for the service-connected right knee total arthroplasty, have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5055.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from June 1984 to August 1985.  In February 2018, the Board remanded this matter for further development.
Increased Ratings
Disability ratings are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155.  Each disability must be viewed in relation to its history and there must be emphasis on the limitation of activity imposed by a disabling condition.  38 C.F.R. § 4.1.  
1. Entitlement to a rating in excess of 10 percent effective prior to October 20, 2015, for a right knee disability.
The Veteran contends that, prior to October 20, 2015, a rating in excess of 10 percent for his service-connected right knee disability is warranted.  Prior to October 20, 2015, his service-connected right knee disability was rated pursuant to Diagnostic Codes (DC) 5010 and 5261.  
DC 5010 (traumatic arthritis) directs that arthritis be rated under DC 5003 which provides that degenerative arthritis established by X ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, DCs 5003, 5010.
DC 5260 provides for a 10 percent rating when flexion is limited to 45 degrees, and 20 percent when flexion is limited to 30 degrees.  38 C.F.R. § 4.71a, DC 5260.  DC 5261 provides a 10 percent rating when extension is limited to 10 degrees, and 20 percent when extension is limited to 15 degrees.  38 C.F.R. § 4.71a, DC 5261.  
The Board finds, however, that whether the Veteran’s service-connected right knee disability is rated or considered under DC 5010, 5260, 5261, as set forth below, the competent evidence of record does not support that grant of a rating in excess of 10 percent under any of the pertinent rating criteria.
Review of the record shows that on a VA examination in October 2011, the Veteran reported that he continued to have right knee pain, wore a brace, and took anti-inflammatories.  He denied flare-ups.  On examination, right knee flexion was to 100 degrees, and extension was to 10 degrees, with pain at the end ranges of motion.  After repetitive-use testing, right knee flexion was reduced to 95 degrees.  Functional impairment was characterized by less movement than normal, pain on movement, and disturbance of locomotion.  Right knee muscle strength testing was slightly reduced on flexion and extension.  Right knee joint stability testing was normal, and there was no evidence of recurrent patellar subluxation or dislocation.  It was noted that he had a right knee meniscus condition and related symptoms included frequent episodes of locking, joint pain, and joint effusion.  He had tenderness on palpation, and used a brace constantly for stability and support while walking or standing.  There was no X ray evidence of patellar subluxation.  The examiner opined the Veteran’s knees impacted his ability to work, noting he was unable to stand for more than 10 minutes without resting, could not climb a flight of stairs without difficulty, and could not kneel, bend, stoop, or climb a ladder.  
VA treatment records showed that in November 2011 the Veteran received a Synvisc injection in the right knee.  His chronic knee pain had been worsening in the past year.  He wore a brace and his right knee was tender and had diffuse effusion and crepitus.  He had full active range of motion.  Joint stability testing was negative.  In February 2012, he reported right anterior knee pain, popping, swelling, and insecurity.  He had a right knee injection in November without benefit, but wore an unloading brace with benefit.  His symptoms were worse with stairs and walking.  Examination revealed a slow gait, right knee flexion to 100 degrees, no effusion, and stable ACLs.  In May 2012, right knee range of motion was from 0 to 130 degrees, with effusion.  In August 2012, he underwent MRI of the right knee for continued pain, catching, and a feeling of something in the joint with ambulation.  He was getting pain relief with Vicodin.  Examination revealed minimal effusion and mild laxity of the joint, and tenderness with palpation.  The impression was tear, posterior horn medial meniscus, right knee.  
In September 2012, it was noted that he wore a brace all the time, and had locking sometimes when walking or standing.  Examination of right knee revealed minimal edema, ambulation with a limp, active and passive range of motion from 0 to 120 degrees, positive McMurray’s test, and the knee was stable to joint stability testing.  He reported right knee catching and symptoms of giving out.  It was noted he wore a knee brace and could walk miles and climb stairs with no knee problems.
VA treatment records showed that in September 2012, the Veteran underwent right knee arthroscopy with revision, partial lateral meniscectomy, and tricompartmental chondroplasty.  He was seen two weeks after the surgery for routine follow up and his mechanical symptoms had mildly improved but the pain was largely unchanged.  In November 2012, he reported the surgery was unsuccessful and he continued to have right knee pain, without change.  He was too young for total knee replacement, and was offered a trial of a steroid injection.  In December 2012, he received a right knee injection and reported the pain was better, and denied swelling, catching, buckling, and locking.  In February 2013, he reported no improvement in symptoms since the surgery in November, and reported swelling, locking, giving way, and stumbling.  He reported that the braces make him feel comfortable walking, but the pain was constant.  He worked in a pharmacy and was on his feet all day long, but just worked through the pain.  It was noted that he had decreased calf circumference on the right, and flexion was noted to be to 90 degrees, with extension to -6 degrees.  Anterior and posterior drawer testing was negative.  In May 2013, he had a Synvisc injection in his right knee, which caused pain and swelling, and he had to go to the emergency room to have it aspirated.  
On a VA examination in August 2013, the Veteran reported pain in the right knee, including with activity, that was not functionally limiting.  He denied flare-ups, but reported having constant pain.  Range of motion testing revealed right knee flexion to 100 degrees, with pain at 100 degrees, and extension to 0 degrees with no objective evidence of painful motion.  After repetitive-use testing, there was no additional limitation of range of motion.  Functional impairment of the right knee was characterized by less movement than normal, weakened movement, and pain on movement.  The examiner opined that pain, weakness, fatigability, and incoordination did not significantly limit functional ability during flare-ups, noting there was no significant flare up observed or reported.  He had tenderness on palpation of the right knee.  Right knee muscle strength testing and joint stability testing were normal, and there was no evidence of recurrent patellar subluxation or dislocation.  He recently underwent a meniscectomy and residuals symptoms included pain, weakened movement, and less movement.  He regularly used a right knee brace for pain.  The examiner opined the right knee condition did not impact his ability to work, noting he worked full time and was not functionally limited.  
VA treatment records showed that in January 2014, the Veteran complained of knee pain going up and down stairs and with deep knee bending.  He reported that a steroid injection in September 26 only gave him a couple of weeks of relief.  Examination revealed no effusion and laxity.  He had bilateral crepitus, especially with patellar compression, and range of motion was from 0 to 120 degrees.  In April and July 2014, he received PRP (plasma rich platelet) injections in the right knee, and he reported a 60% improvement in pain.  In August 2014, he requested new Neoprene knee sleeves, stating he wore them all the time.  In February 2015, the Veteran left a message that he was having continued pain in the knees, and that with medication the pain was at level 5 or 6 out of 10, and to level 8 or 9 without medications.  He stated that both knees continued to lock without warning.  
VA treatment records showed that in April 2015, the Veteran was issued a Townsend brace for the right knee and it was noted he was walking more confidently, and was pain free on the stairs, walking, and getting up out of chair, with this brace on.  In May 2015, it was noted he had failed all conservative management of his knees, and that if he was still having problems he needed a total knee replacement (TKR) appointment.  In July 2015, he complained of pain, swelling, catching, locking, and giving way.  Examination revealed right knee range of motion from 0 to 120, effusion, tenderness, and mild joint line laxity.  In August 2015, the diagnosis was listed as derangement of meniscus.  In September 2015, it was noted he had a severe amount of arthritis and mechanical issues with the knees, and the options for treatment for his knees was debridement or TKR.  
The record shows that prior to October 20, 2015, a 10 percent rating was assigned pursuant to DCs 5010-5261.  After reviewing the record, the Board concludes that the preponderance of the competent evidence does not support the grant of a rating in excess of 10 percent pursuant to DCs 5010, 5261, or 5260.  In that regard, while the Veteran has repeatedly complained of chronic knee pain, the limitation of motion findings for flexion and extension recorded in VA treatment records and VA examinations do not meet the requirements for the next higher rating under either DC 5260 or DC 5261, as flexion was shown to be at worst limited to 95 degrees, and extension was at worst limited to 10 degrees—on one occasion.  
Moreover, the Board notes that pain and additional functional limitations were considered in the assignment of the current 10 percent rating pursuant to DC 5261, as there was only one notation of extension limited to 10 degrees, and on all other occasions extension was full.  38 C.F.R. § 4.59.  The competent evidence of record has shown that the Veteran’s service-connected right knee disability manifested chronic pain, tenderness, edema/swelling, crepitus, guarding of movement, limitation of motion, pain on motion, and gait impairment, as well as limitations on daily activities including walking, standing, and climbing stairs.  However, the Veteran has denied flare-ups, reporting he has constant pain, and no additional limitations have been noted with repetitive range of motion testing.  Thus, even with consideration of pain and functional limits, the manifestations of the service-connected right knee disability have not been associated with such additional functional limitation as to warrant increased compensation pursuant to provisions of 38 C.F.R. §§ 4.40, 4.45, or DeLuca v. Brown, 8 Vet. App. 202 (1995).  Rather, as noted above, his complaints of pain and resulting functional limitations are contemplated in the current 10 percent rating assigned under DC 5261.  The Board therefore concludes that higher ratings are not warranted for limitation of motion, pain, and tenderness of the service-connected right knee disability, under DC 5260 or DC 5261, as the clinical and reported findings more nearly approximated the criteria for a 10 percent rating.  38 C.F.R. § 4.7.
The Board will now consider whether additional separate ratings are warranted for the Veteran’s right knee disability, prior to October 20, 2015.  In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined under 38 C.F.R. § 4.25. 
With regard to a separate rating for instability, the Board notes that prior to October 20, 2015, the Veteran reported right knee buckling and giving way, and he constantly wore a knee brace for both relief of pain and to help with instability.  Further, while there have been objective examinations showing no instability or laxity of the right knee during the appeal, there have been times when in addition to the Veteran reporting instability of the knee, objective joint stability testing has revealed instability.  Where there is recurrent subluxation or lateral instability, a 10 percent rating will be assigned for slight disability, and a 20 percent rating will be assigned for moderate disability.  38 C.F.R. § 4.71a, DC 5257.  A claimant who has arthritis or limitation of motion and instability of a knee, may be rated separately under DCs 5003 and 5257.  VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998).  
Accordingly, in viewing the evidence in the light most favorable to the Veteran, the Board finds the competent lay and medical evidence is sufficient to grant a separate 10 percent rating, prior to October 20, 2015, for slight instability of the right knee.  38 C.F.R. § 4.71a, DC 5257.  The next higher rating of 20 percent, however, requires competent evidence of moderate recurrent subluxation or lateral instability.  Here, while the Veteran has consistently worn a knee brace, this has been for chronic pain as well as instability, and there have been times the Veteran has denied instability of the knee and objective testing has not shown instability.  
The Board also notes that the Veteran’s service-connected right knee disability has exhibitted pathology of the meniscus (semilunar cartilage) for the entirety of the appellate period, and as a result, manifested symptoms including locking and joint effusion/swelling during the appeal period.  DC 5258 provides for a maximum 20 percent rating for dislocated semilunar, cartilage, with frequent episodes of locking, pain, and effusion into the joint.  Considering the fact that he underwent removal of semilunar cartilage (meniscectomy) in September 2012, exhibited various symptoms thereafter, including locking and effusion/swelling, and that in August 2015, just prior to the TKR, he was diagnosed with derangement of meniscus, the Board finds that a separate 20 percent rating is warranted pursuant to DC 5258, effective prior to October 20, 2015, based on frequent episodes of joint locking and joint effusion in the right knee.  38 C.F.R. § 4.71a, DC 5258.   
2. Entitlement to a rating in excess of 30 percent effective from December 1, 2016, for a right knee total arthroplasty.
Since the Veteran underwent a right TKA in October 2015, his service-connected right knee disability was rated under DC 5055, with a 100 percent post-surgical rating until December 1, 2016, after which a 30 percent rating was assigned.
Under Diagnostic Code 5055, a 100 percent rating is assigned for prosthetic replacement of the knee joint for one year following implantation of prosthesis.  Subsequently, a 60 percent evaluation may be assigned for knee replacement (prosthesis) with 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 knee 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. 
The Board initially notes that this matter was remanded in February 2018, to schedule the Veteran for a VA examination of his right knee.  Therein, the Board noted he underwent a VA examination in August 2016, several months prior to the cessation of the total rating, but the examiner noted that it was within a year of the knee replacement surgery, and recommended the Veteran be examined after the one year period had elapsed.  
Review of the record shows that a VA examination was scheduled for the Veteran in April 2018.  However, he did not report for the examination.  In a Report of General Information (VA Form 27-0820), it was noted that the RO contacted the Veteran in April 2018, regarding his no show for the examination, and the Veteran indicated that he did not report for the examination because he received an increase rating for the knee and felt the examination was pointless.  
The Board notes that the Veteran submitted a subsequent letter, dated in August 2018, regarding a “missed medical appointment,” indicating he had forgotten about the appointment.  In the letter, the Veteran provided background medical history regarding his knees, and reported that, since his knee replacement surgery, he had quite a lot of pain on both sides, and the worse side was the left.  He reported that he received a brace for both knees which he wore always, and also used a cane when it was a long day and his knees were hurting.  He reported that he had “a lot going on” and to get a letter in the mail stating he broke the law by not making the medical examination was upsetting.  He claimed he explained in his letter why the appointment was missed, but stated that if he needed to have a medical examination, once should be scheduled and would adhere to that.  In reviewing this letter, especially in light of the April 2018 Report of Contact, it does not appear that the Veteran is referring to the issue currently before the Board.  Thus, the Board finds that a remand in order to schedule another VA examination is not necessary, especially in light of the Report of General Information completed by the RO in April 2018.  Accordingly, the Board will adjudicate the claim based on the competent evidence of record subsequent to the Veteran’s right TKR.
Subsequent to October 2015, and specifically in March 2016, the Veteran reported that he was doing okay but still had some pain and was still on oxycodone.  He reported a clicking sensation of the right knee when he walked upstairs.  In June 2016, it was noted he had chronic knee pain, and that, although he had bilateral knee replacements in past year, he did not do the knee program.  He had a strong-looking knee extension but would benefit from further leg exercises to increase his functional distance and improve his balance and endurance.  
On a VA examination in August 2016, it was noted that the Veteran reported constant dull knee pain at level 5 – 6 with the left being worse than the right.  He could not walk more than 1/4 mile and was unable to run.  He completed physical therapy and did not use a cane or brace, and denied flare-ups.  Range of motion testing revealed right flexion to 110 degrees with pain and extension to 0 degrees.  There was no tenderness or crepitus, and no pain with weight bearing.  He performed repetitive use testing without any additional loss.
VA treatment records showed that in September 2017, the Veteran was seen for left knee problems, and the assessment was that with regard to his right TKA he was doing well.  He also reported chronic knee pain after TKA.  In January 2018, the Veteran and his wife stated that his gait had become less stable over past few months, but the examiner noted that his gait appeared to be good on the day of the examination.  In January 2018, the Veteran also requested a replacement knee brace for right knee.  In February 2018, it was noted that the Veteran had a history of pain in right knee.  In March 2018, examination revealed no edema, and his knees were not tender, erythematous, or edematous, and he walked with a cane.
After a review of the evidence dated subsequent to the Veteran’s right TKR, the Board finds that a disability rating in excess of 30 percent is not warranted for the service-connected right knee total arthroplasty, effective from December 1, 2016.  The criteria for a 60 percent rating under DC 5055 are not met during this period, as the evidence does not show his right knee replacement was manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity.  Additionally, a higher rating under DC 5055 is not assignable based on intermediate degrees of residual weakness, pain, or limitation of motion.  There are also no findings of ankylosis.  Therefore, a rating in excess of 30 percent under DC 5256 is not warranted.  Under DC 5261, a rating in excess of 30 percent requires limitation to 30 degrees of extension, but the reported findings do not approximate extension limited to 30 degrees.  Also, the evidence of record does not show findings of impairment of the tibia and fibula, or impairment analogous to such, and, accordingly, a rating in excess of 30 percent is not assignable under DC 5262.
 
THERESA M. CATINO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Casula, Counsel 

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