Citation Nr: 1306270	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  04-31 124	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to an initial disability rating greater than 30 percent for postoperative right total knee arthroplasty, from December 1, 2010.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) from December 1, 2010. 


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

M. Prem, Counsel



INTRODUCTION

The Veteran served on active duty from April 1971 to June 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  This matter was remanded in June 2006, October 2007, September 2010, and February 2012 for further development.  


FINDINGS OF FACT

1.  From December 1, 2010, the Veteran's postoperative right total knee arthroplasty has been manifested by chronic residuals consisting of severe painful motion or weakness.

2.  From December 1, 2010, the Veteran has met the percentage requirements for the grant of TDIU and had a service connected disability that prevented him from engaging in gainful employment for which he otherwise would have been qualified.


CONCLUSIONS OF LAW

1.  Effective December 1, 2010, the criteria for entitlement to a disability evaluation of 60 percent, but no higher, for the Veteran's service-connected postoperative right total knee arthroplasty have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Code 5055 (2012).

2.  Effective December 1, 2010, the criteria for entitlement to a TDIU have been met.  38 C.F.R. §§ 3.340, 4.16 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's claims arise from an appeal of the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  


Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4). 

VA obtained the Veteran's Social Security Administration (SSA) disability records and all of the identified post-service medical records.  In addition, the Veteran was afforded VA examinations for a right knee disability.

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Increased ratings

The present appeal involves the Veteran's claim that the severity of his service-connected postoperative right total knee arthroplasty warrants a higher disability rating for the period beginning December 1, 2010.  Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where 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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet.App. 119 (1999).

A total knee replacement is a prosthetic implant that is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012).  For one year after a prosthetic replacement of the knee joint, the knee status post total knee arthroplasty is rated at 100 percent. After that point, if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, the rating is 60 percent.  If there is intermittent degrees of residual weakness, pain or limitation of motion, this is rated under Diagnostic Codes 5256 (ankylosis), 5261 (limitation of extension) and 5262 (impairment of the tibia and fibula).  The minimum rating after a knee replacement is 30 percent.

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet.App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  

The Board, in a September 2010 Decision, determined that the Veteran's right knee disability was to be rated 10 percent disabling from August 17, 1994, to November 29, 2006; 60 disabling from November 30, 2006, to April 29, 2007; 10 percent disabling from April 30, 2007, to March 23, 2009; and 30 percent disabling from March 24, 2009, to September 30, 2009.  The Veteran underwent a total right knee replacement on October 1, 2009.  In June 2010, the RO issued a rating decision in which it granted a 100 percent rating pursuant to Diagnostic Code 5055.  It assigned a 30 percent rating effective December 1, 2010.  In response to the June 2010 rating decision, the Veteran submitted a letter in which he stated that his right knee disability should continue to be rated at 100 percent.  

In the Veteran's June 2010 correspondence, he stated that since his total knee replacement, he was no longer in constant pain; he did not need crutches to walk; he was able to get in and out of vehicles easier; and he was able to go up and down stairs one stair at a time if there was a railing to hold.  

In its February 2012 Remand, the Board instructed the RO to schedule the Veteran for a VA examination because an examination was needed in or to "fully and fairly evaluate the current severity of the right knee disability and its impact on employment since December 1, 2010."  

The Veteran underwent a VA examination in March 2012.  He complained of constant aching right knee pain that worsened with stairs or ladders.  He stated that the pain was excruciating when standing on his right leg while climbing or balancing on a ladder.  He also reported increased pain after prolonged sitting or driving.  He reported right knee stiffness upon getting up in the morning and after prolonged driving.  He reported decreased range of motion; right knee fatigue and instability with activities; a feeling of constant swollenness; a sensation of numbness to the touch; and locking up.  The examiner noted that after repetitive use, the Veteran experienced less movement than normal; weakened movement; pain on movement; and disturbance of locomotion.  Muscle strength testing showed less than normal strength.  Finally, the examiner found that the Veteran suffered from chronic residuals consisting of severe painful motion or weakness.  The examiner opined that the total knee prosthesis limited weight bearing to 40 pounds; and that decreased range of motion, weakness, pain, and fatigability further prevented him from his employment in physical or manual labor.  He further opined that the disability would prevent the Veteran from engaging in the types of employment for which his education and experience qualify him.  

The Board finds that in the absence of any clinical evidence from December 1, 2010 through March 22, 2012, the most appropriate means of determining the severity of the disability during that time is to consider the most contemporaneous medical evidence, and the lay statements of the Veteran.  In this case, the Veteran, in his June 2010 correspondence, stated that his symptoms were somewhat improved, but that he still suffered from weakness in his right knee, and that he could only go up and down stairs one at a time with the assistance of a railing.  Since he was not afforded a VA examination at that time, there is no medical evidence to refute this contention.  Instead, the most contemporaneous medical evidence (the March 2012 VA examination report) substantiates his contention and was sufficient to warrant a 60 percent rating.  The Board finds that a rating of 60 percent is warranted effective December 1, 2010.  

The Board notes that a rating in excess of 60 percent is not warranted here.  The only rating greater that 60 percent pursuant to Diagnostic Code is a 100 percent rating warranted only for 1 year following implantation of prosthesis.  Moreover, Diagnostic Codes 5256, 5261, and 5262 do not include any ratings in excess of 60 percent.  

As the preponderance of the evidence is against a rating in excess of 60 percent, the benefit-of-the-doubt doctrine does not apply, and the claim for an initial or staged rating in excess of 60 percent for postoperative right total knee arthroplasty must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).

TDIU (from December 1, 2010 through March 22, 2012)

In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is "whether the Veteran's service connected 
disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation.  VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992).  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

VA regulations establish objective and subjective standards for an award of total rating based on unemployability.  When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more.  When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation.  See 38 C.F.R. § 4.16(a).  A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a).  Thus, the Board must evaluate whether there are circumstances, apart 
from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability.  A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule.  See Parker v. Brown, 7 Vet. App. 116, 118 (1994).  

It has already been determined that a TDIU was warranted from March 29, 2007, through September 30, 2009; that the Veteran had a schedular rating of 100 percent from October 1, 2009, through November 30, 2010; and that the RO has granted a TDIU effective March 23, 2012.  Consequently, the Veteran is already receiving either a 100 percent schedular rating or a TDIU from March 29, 2007, to the present, with the exception of the 15 months from December 1, 2010, through March 22, 2012.  The Veteran argues that there is no medical evidence that he was suddenly employable for this 15 month period.  

The Board is granting a 60 percent rating for postoperative right total knee arthroplasty, effective December 10, 2010.  Therefore, the Veteran met the percentage requirements for a TDIU as of that date.

However, the Board must still determine whether the Veteran's service-connected disability results in impairment so severe that it is impossible to follow a substantially gainful occupation.  The Board emphasizes that a total rating based 
on individual unemployability is limited to consideration of service-connected disabilities.  

As noted above, there are no medical records dated from December 1, 2010, through March 22, 2012.  The Veteran argued as early as June 2010 that the residuals of his total right knee arthropathy prevent him from being employed.  In that June 2010 correspondence, he stated that he had to take early retirement because he could no longer perform the duties of his job and because he was becoming a burden to his co-workers.  The Board finds that in the absence of medical records from December 1, 2010 through March 22, 2012, the only evidence of record is the Veteran's lay statements.  These lay statements are consistent with the medical records dated prior to December 1, 2010 (when he was rated 100 percent disabled) and dated after March 22, 2012 (when he was rated 60 percent disabled and the VA examiner explicitly stated that the Veteran was unemployable).  In the absence of medical records to contradict the Veteran, the Board finds no evidence that his status as unemployable changed during the 15 month period from December 1, 2010, through March 22, 2012.  Consequently, the Board finds, in affording the benefit of the doubt to the Veteran, that a TDIU is warranted effective December 1, 2010.        


ORDER

Effective December 1, 2010, a rating of 60 percent, but no higher, is granted for the Veteran's service-connected postoperative right total knee arthroplasty.

Effective December 1, 2010, entitlement to a TDIU is granted.  


 

______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs