Citation Nr: 1341275 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-29 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to restoration of a 30 percent rating for the residuals of a gunshot wound of the right knee, based on instability. 2. Entitlement to an increased rating for residuals of a right knee arthroplasty, evaluated as 100 percent disabling prior to July 1, 2009, and 30 percent disabling since that date. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active service from December 1967 to March 1971. He received the Purple Heart Medal, Combat Infantryman Badge and Bronze Star Medal with "V" device, among other decorations. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), located in Pittsburgh, Pennsylvania. The Veteran had been in receipt of a 30 percent rating for residuals of a gunshot wound of the right knee since March 13, 1971, rated on the basis of instability. In a December 2008 rating decision the RO established a separate rating for right knee arthroplasty. It provided a 100 percent temporary rating for convalescence for this disability from May 13, 2008 to June 30, 2008, a 100 percent rating from July 1, 2008 to June 30, 2009 and a 30 percent rating beginning July 1, 2009. In August 2009, the Veteran expressed disagreement with "the VA when they lowered my temporary rating of 100% to 60%." In December 2009, the RO proposed to "discontinue" the separate 30 percent rating for instability. In March 2010, it issued a rating decision that "severed" service connection for "gunshot wound, right knee," effective July 1, 2010. In the statement of the case issued in May 2010, the RO styled the issue as "entitlement to a temporary total evaluation because of treatment for a service connected condition requiring convalescence." In the supplemental statement of the case issued in November 2012, it referred to the issue as "evaluation, right knee arthroplasty, currently evaluated as 30 percent disabling form July 1, 2009." The Veteran provided testimony at a March 2013 hearing before the undersigned at the RO. A hearing transcript has been associated with the claims folder. At the hearing, the issue was characterized as the proper evaluation for the right knee disability, evaluated as 100 percent prior to July 1, 2009 and 30 percent since that date. The Board construes the Veteran's appeal as encompassing the proper evaluation of his right knee disability, including the propriety of the termination of the separate 30 percent rating for the right knee gunshot wound residuals manifested by instability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (noting that Veteran's do not file claims merely for specific diagnoses, but must be adjudicated on the basis of the reasonable expectations of the Veteran); see also VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004); VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998); VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997) (providing that ratings for a knee disability encompasses consideration of separate ratings for separate manifestations of the disability). The issues of entitlement to a rating in excess of 30 percent for residuals of right knee arthroplasty after June 30, 2009, and entitlement to an increased evaluation for a right knee disability are addressed in the REMAND portion of the decision below and they are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The 30 percent disability evaluation assigned for the residuals of a gunshot wound of the right knee, based on instability has been in effect for more than 20 years and was not the result of fraud. 2. Throughout the appeal period the Veteran has had service connected disabilities of common etiology evaluated as at least 60 percent disabling and which prevent gainful employment for which he would otherwise be qualified. CONCLUSION OF LAW 1. The criteria for restoration of a separate and protected 30 percent disability evaluation for the residuals of a gunshot wound of the right knee based on instability have been met. 38 C.F.R. § 3.951(b) (2013). 2. The criteria for entitlement to a total rating for compensation based on individual unemployability (TDIU) have been met since July 1, 2009. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The essential facts of this case are not in dispute. Rather, the case rests on the interpretation and application of the relevant law. The Veterans Claims Assistance Act of 2000 (VCAA) does not affect matters on appeal when the issue is limited to statutory interpretation and not the facts. See Manning v. Principi, 16 Vet. App. 534 (2002); Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Restoration of 30 percent rating The Veteran has been assigned a 30 percent disability evaluation for the residuals of a gunshot wound of the right knee, since March 13, 1971, on the basis of instability under Diagnostic Code 5257. A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. See 38 C.F.R. § 3.951(b) (2013). In the present case, the 30 percent rating was in effect for more than 20 years at the time of the March 2010 rating decision that purported to eliminate that rating. There is no evidence of any kind that would indicate, suggest, or insinuate that the disability evaluation assigned by the RO in 1971 was or is the product of fraud. As the 30 percent disability rating has been in effect for more than 20 years and there is no showing that the original rating was based upon fraud, the evaluation itself is protected pursuant to the criteria found at 38 C.F.R. § 3.951(b) (2013). Accordingly, the Veteran is entitled to a restoration of a separate 30 percent, protected disability evaluation pursuant to 38 C.F.R. Part 4, Diagnostic Code 5257 (2013). TDIU TDIU is a potential element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the instant case there is extensive evidence of unemployability related to the service connected right knee disability. TDIU is granted when a Veteran's service connected disabilities render him or her unemployable; those disabilities are rated less than total, and there is at least one disability rated 40 percent or more and sufficient other service connected disability to yield a combined rating of 70 percent or more; or a single disability rated 60 percent or more. 38 C.F.R. § 4.16(a). For purposes of TDIU, disabilities of common etiology or accident, and injuries incurred in action will be considered a single disability. In addition to the knee disabilities discussed above, the Veteran is service connected for posttraumatic stress disorder, rated 30 percent disabling since August 10, 2009; multiple rib scars, rated 10 percent disabling, a right great toe disability as secondary to the right knee disability, evaluated as 10 percent disabling. The combined rating would be 100 percent prior to July 1, 2009; and at least 60 percent since that date. These disabilities are all the result of injuries incurred in action and are of common etiology. Hence the percentage requirements are met. In a claim for TDIU dated in July 2010, the Veteran reported that he had worked as a dock clerk for the postal service from September 1987 to the day prior to his right knee replacement in May 2008. He had completed one year of college. He was awarded Social Security Administration disability benefits, in March 2009, based on a primary diagnosis of residuals of the right knee replacement. The disability was found to have begun in May 2008. At a VA examination in October 2010, it was noted that the Veteran reported employment in a job that required extensive walking. The examiner opined that the Veteran did not "seem appropriate for physical employment," but did "seem appropriate for sedentary employment." A March 2012, VA treatment record includes the Veteran's report that he was doing well since the knee replacement and that no instability was found on examination. At the hearing; however, the Veteran indicated that the knee felt unstable and that he continued to experience pain that was occasionally sharp. While the VA examiner opined that the Veteran would be able to perform sedentary employment, it does not appear that the Veteran has experience in sedentary employment. Prior to his employment with the post office, he worked as a grocery clerk, which is employment requiring some physical activity. Resolving reasonable doubt in the Veteran's favor, entitlement to TDIU is granted. ORDER Restoration of a separate, 30 percent rating for the residuals of a gunshot wound of the right knee on the basis of instability is granted. Entitlement to TDIU is granted. REMAND The Veteran's most recent VA examination was in October 2010. Since that time, he has received VA treatment and testified to symptoms that may have increased since that time. Hence a new examination is warranted. It also appears that the RO has uploaded pertinent VA outpatient treatment records to the Veteran's electronic claims file, but has not issued a supplemental statement of the case that considers those records. Hence, the case is REMANDED to the AMC for the following development: 1. Arrange for the Veteran to be examined in order to determine the severity of his right knee disability. The examiner must review the claims folder and state that this has been accomplished. The examiner must provide reasons for all opinions and conclusions reached, citing the objective medical findings leading to the provided conclusions. The Veteran's ranges of motion, and any limitation of function of the parts affected by limitation of motion. Additionally, the examiner should determine whether the affected body parts exhibit weakened movement, excess fatigability, or incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range of motion due to those factors. The examiner should opine as to whether there is severe painful motion or weakness in the right leg related to the right knee disability. 4. If the requested examination report does not include the requested information, the deficient report must be returned for corrective action. 5. If the benefits sought on appeal are not fully granted, issue a Supplemental Statement of the Case (SSOC). Thereafter, the case should be returned to the Board, if otherwise in order. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran is advised that failure to cooperate by reporting for examination may result in the denial of the claims. 38 C.F.R. § 3.655 (2013) and Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs