Diagnostic Code 5055, which covers knee replacements,
provides for a 60% rating for “Chronic residuals consisting of sever painful
motion or weakness in the affected extremity.”
The veteran reported experiencing significant pain in both knees and
left knee pain "all the time" and knee pain 6 hours a day and relying
on a walker to get around. Id. at
*2. The
Board found:
appellant's range of motion was
"at worst 95 degrees of flexion and 0 degrees of extension." R. at 6.
The Board concluded that a "higher or separate [intermediate] rating is
not warranted based on limitation of motion." R. at 7. Because the
appellant's left knee did not warrant more than a minimum rating for painful
motion under the other DCs for limitation of motion, the Board found that no
intermediate rating was warranted under those DCs and that it was "more
favorable for him to retain his currently assigned 30[%] minimum disability
rating" under DC 5055. Id. Additionally, the Board noted that it cannot find that chronic residuals consisting
of severe painful motion or weakness in the affected extremity are present such
that a disability rating of 60[%] under [DC] 5055 is warranted." Id. The Board
specifically found that, "while the [appellant] did experience pain in the
left knee, his range of motion was not limited to compensable levels." Id.
The Board observed that VA examiners found moderate weakness and normal
strength. Id. Thus, the Board concluded that a "disability rating in
excess of 30[%] cannot be granted," id., because his disability "did
not rise to the level of severe painful motion or weakness."
Id. at *2.
The veteran argued the VA had conflated the terms severe
painful motion with limitation of motion whereas the Secretary argued “the Board
was required to consider limitation of motion in deciding the appropriate
rating under DC 5055. The Secretary asserts that a disability rating is
assigned based on the loss of earning capacity and because a knee becomes
impaired most commonly by limitation of motion, it follows that in evaluating
the disability level caused by pain, limitation of motion is a critical factor
to be considered.” Id. at *4.
The Court focused on the plain language of DC 5055 and
determined severe painful motion and limitation of motion are distinct
concepts. It noted that the 60% rating
did not require limitation of motion whereas lower intermediate level ratings
under DC 5055 did require limitation of motion, which meant the Secretary knew
how to use the terms differently but wrote DC 5055 as it did.
The Court then wrote:
Therefore, to the extent that the Board in this matter
substituted a requirement of limitation of motion for the severe-painful-motion
analysis contemplated by DC 5055, the Board erred. See Pernorio v. Derwinski, 2
Vet.App. 625, 628 (1992) (finding Board error where it misapplied the terms of
the applicable DC). This is not to say that the Board is precluded from
considering objective tests for limitation of motion in evaluating
service-connected residuals of a knee replacement under DC 5055, but to
adequately assess the degree of painful motion under DC 5055, the Board must do
more than merely cite those test results and state the corresponding evaluation
under the pertinent limitation-of-motion DC. Simply stated, limitation of
motion is but one factor when assessing the disability commensurate with
"severe painful motion."
Id. at *6-7.
In the case at hand, “[t] he Board found that severe painful
motion was not present because the appellant's "range of motion was not
limited" by pain. Id. This is not what DC 5055 requires for a 60% rating;
it is severe painful motion, not limitation of motion, that is required.” Id. at *7.
The Court also challenged the Secretary and stated:
As a final matter, the Court notes,
without deciding, that the Board may need to explain what it understands
"severe" to mean as it is used to describe painful motion and weakness at the 60% disability level. This
Court has made clear that the Board cannot base its rating decisions on undisclosed
standards. See Johnson v. Wilkie, 30 Vet.App. 245, 254-55 (2018). Doing so
amounts to nothing more than the Board saying that a veteran is not entitled to
certain benefits "'because I say so.'"
Id. at *7.
The Court also considered lateral knee instability. In this case, the Board noted veteran reports
of knee instability but found medical findings more probative. Id. at *8.
The Court noted “the Board's explanation appears to rely on an
understanding that medical evidence is inherently more probative under DC 5257,
which this Court has rejected.” Id. at
*8. Thus, the case was remanded on both
the DC 5055 (severe painful motion) and DC 5257 (instability) arguments.
This case underscores the fact the VA often does not fully
accept a veteran’s complaints of pain when assigning a rating. It is important to continue appealing these
types of cases and thus holding the VA to account.
The decision was by Judge Allen and joined in by Judges
Bartley and Meredith.
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