Citation Nr: 0316240 Decision Date: 07/17/03 Archive Date: 07/22/03 DOCKET NO. 00-21 089 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased rating for status post total right knee replacement, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The veteran had active service from February 1951 to November 1952. This matter comes before the Board of Veterans' Appeals (Board) from a May 2000 RO rating decision which denied a rating in excess of 30 percent for a right knee disability. The veteran underwent a total right knee replacement in December 2000. By September 2002 rating decision, the RO granted a temporary total rating, effective December 26, 2000 to February 28, 2002 for the right knee replacement, followed by a 30 percent rating effective from March 1, 2002. FINDINGS OF FACT 1. The veteran's status post total right knee replacement is manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity. 2. There is also a tender right knee surgical scar. CONCLUSIONS OF LAW 1. The criteria for a 60 percent disability rating for status post total right knee replacement have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2002). 2. The criteria for a separate 10 percent rating for a right knee surgical scar have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran served in the U.S. Army from February 1951 to November 1952; he served in the infantry and saw combat in Korea. Service medical records show that he fell while in Korea in October 1951 and injured his right knee. By September 1969 rating decision, the RO granted service connection and a noncompensable rating for right knee injury residuals. By October 1987 rating decision, the RO granted a temporary total rating followed by a 20 percent rating for status post surgical osteotomy, secondary to right knee injury, degenerative osteoarthritis of the right knee (Pellegrini-Stieda disease). By September 1995 rating decision, the RO granted an increased 30 percent rating for a right knee condition. Received from the veteran in February 2000 was a private X- ray of the right knee, dated in January 2000, showing remodeling of the right tibial plateau, most probably on the basis of a previous fracture, and bilateral superior patellar spur formation. In a February 2000 statement from the veteran's private physician, Dr. Rodriguez Fontanez, it was noted that the veteran's right leg had been bothering him for the past six months and that the veteran had a lot of pain, edema, and movement limitations which required injections of the knee. Dr. Fontanez also noted that this had caused the veteran to have a handicap since he could not walk steadily or for long periods of time and could not stay on his feet for more than one hour. On VA examination in April 2000 the veteran complained of moderate right knee pain. He reported that when putting weight on the knee heard a cracking sound and suffered a loss of balance of the right leg. Range of motion of the right knee was to 90 degrees on flexion and to -20 degrees on extension. There was painful motion from the first to last degree of motion. There was 4 cm of edema of the right knee with suprapatellar and infrapatellar effusion, heat, guarding of movement, no instability, a positive McMurray's sign, severe crepitus, and a positive patellar grinding test on the right knee. It was noted that the veteran could walk unassisted, but he did limp. By May 2000 rating decision, the RO denied a rating in excess of 30 percent for the right knee condition. VA treatment records show that in December 2000 the veteran underwent a total right knee replacement. His preoperative disorder was right knee severe osteoarthritis, status post high tibial osteotomy. Follow-up treatment records showed that the surgical scar was healing well, the erythema, edema, and effusion of the right knee was reducing, and there minimal pain to the surgical wound, but more pain on range of motion of the right knee. Ranges of motion of the right knee in early January 2001 were -30 to 70 degrees, -15 to 90 degrees, -21 to 74 degrees, A January 2001 private treatment record showed that the veteran complained of limitation of motion and pain in the right knee. The veteran reported he had improved gradually, allowing increased range of motion and tolerance. He was ambulatory with crutches. There was significant edema, which had decreased slowly. Range of motion of the right knee was to 85-90 degrees on flexion and -15 degrees on extension. A January 2001 x-ray of the right knee showed an arthroplasty at the femur-tibial level and the haziness of the suprapatellar bursa region was consistent with a joint effusion. A September 2002 private treatment record showed that the veteran's diagnoses included status post total right knee replacement. By September 2002 rating decision, the RO granted a temporary total rating, effective December 26, 2000 to February 28, 2002 for the right knee replacement, followed by a 30 percent rating effective from March 1, 2002. On VA examination in October 2002 the 73 year old veteran complained of mild right knee pain in the anterior aspect, with limitation of motion. He used medication daily which provided temporary pain control for four hours. He reported that precipitating factors for right knee pain included going upstairs and walking a lot. He reported that occasionally upon walking his right foot gave away and he felt severe pain and that when that happened he would sit and rest for 30 to 40 minutes and take medications for three to four days straight. He could walk unassisted, but used a one-point cane for support and to prevent falls. It was noted that he worked on and off, full time, in construction for several years until December 2000. With regard to daily activities, the veteran had difficulty walking due to his right knee condition and he could not play softball and could not drive the car when he had severe pain. He complained of weakness following the surgery. On examination range of motion of the right knee was to 85 degrees on flexion and to -10 degrees on extension. There was painful motion on the last degree of motion. There was moderate objective evidence of painful motion on all movements of the right knee. There was no edema, effusion, redness, heat, abnormal movement or guarding with movement of the right knee. There was moderate tenderness to palpation on the right knee surgical scar, which was well-healed. Instability was difficult to evaluate because the veteran had severe pain, but visually there was no dislocation. There was mild weakness of the right knee extensor muscle quadriceps with muscle strength graded 4/5. He could walk unassisted but limped with his right leg. The diagnosis was status post right total knee replacement. Analysis The file shows that through correspondence, the rating decision, the statement of the case, and supplemental statements of the case, the veteran has been notified of the evidence necessary to substantiate his claim, and of the respective obligations of VA and him to obtain different types of evidence. He has been afforded VA examinations, and identified relevant medical records have been obtained. The Board is satisfied that the notice and duty to assist provisions of the law have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A ; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet.App. 183 (2002). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. A knee replacement is rated 100 percent for 1 year following implantation of prosthesis (and such total rating follows an initial temporary total convalescent rating under 38 C.F.R. § 4.30). Thereafter, residuals of a knee replacement are rated based on residuals, as follows: the minimum rating is 30 percent; a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity; and intermediate degrees (i.e., between a 30 percent and 60 percent rating) of residual weakness, pain or limitation of motion are to be rated by analogy under Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055. In accordance with Diagnostic Code 5055, the RO assigned a temporary 100 percent rating from December 26, 2000 to February 28, 2002, based on right knee replacement. After the temporary total rating mentioned in Diagnostic Code 5055 expires, the right knee replacement is to be rated based on residuals. The RO assigned a right knee disability rating of 30 percent from March 1, 2002, which is the minimum rating of Diagnostic Code 5055. After a review of all the evidence, the Board finds that a disability rating of 60 percent under Diagnostic Code 5055 is warranted for the service-connected status post total right knee replacement. The veteran has complained of pain, weakness, and limitation of motion, all of which was confirmed on that most recent VA examination. Moreover, the most recent VA examination may reasonably be interpreted as showing chronic residuals of a left knee replacement consisting of severe painful motion or weakness of the affected extremity, as required for a 60 percent rating. Admittedly, the veteran has complained of mild pain only, however, there is weakness of the right knee, limitation of motion with pain on all movements of the right knee, and the veteran uses a cane for ambulation. Applying the benefit-of- the-doubt rule, 38 U.S.C.A. § 5107(b), the Board finds that the veteran now has chronic residuals of right knee replacement, consisting of severe painful motion or weakness in the affected extremity, and such supports an increased rating to 60 percent for this disability. The law permits a separate rating for additional disability from a scar. Esteban v. Brown, 6 Vet.App. 259 (1994). A maximum 10 percent rating may be assigned for a superficial scar which is tender and painful on objective demonstration. This is true under the old rating criteria for scars (38 C.F.R. § 4.118, Diagnostic Code 7804 (2002)), as well as recently revised rating criteria for scars (67 Fed.Reg. 49590, 49,596, effective August 30, 2002, including Diagnostic Code 7804). On the most recent VA examination, there was moderate tenderness to palpation on the right knee surgical scar, which was well-healed. This supports a separate 10 percent rating under Diagnostic Code 7804, and such is granted. ORDER An increased 60 percent rating for status post total right knee replacement, and a separate rating of 10 percent for a right knee scar, are granted. ____________________________________________ L.W. TOBIN Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.