Citation Nr: 1312031 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 12-14 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a rating in excess of 30 percent for post left knee replacement left knee disability. REPRESENTATION Appellant represented by: Iowa Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1952 to November 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT 1. In June 1997 the Veteran underwent left knee replacement for his service-connected left knee disability. 2. The chronic residuals of the procedure are currently shown to include severe painful motion and weakness. CONCLUSION OF LAW A 60 percent rating is warranted for the Veteran's residuals of a left knee replacement. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Code (Code) 5055 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 3.326(a). The VCAA applies to the instant claim. A letter dated in November 2010 advised the Veteran of the legal requirements for supporting his claim. Thus, the notice requirements have been met. The Board also notes that the Veteran's medical treatment records have been obtained, and he was afforded a VA examination to assess the current severity of the disorder. The Board finds that the examination was adequate to allow proper adjudication of the issue on appeal. The examiner conducted a complete examination, recorded all findings considered relevant under the applicable diagnostic code, and considered the full history of the disability. No further development is required. The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in the "Virtual VA" electronic records storage system. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2009). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows or fails to show as to the claim. Factual Background In June 1997, the Veteran underwent a left knee replacement for his service-connected left knee disability. In October 2010, he filed a claim for a rating in excess of 30 percent from August 1, 1998. A VA treatment record dated in August 2010 shows that the Veteran reported having knee pain which he described as being an 8-9 on a scale of 10 with any ambulation. He reportedly used a case and a walker. On examination, he had limited range of motion and stiffness in the knees. There was pain on palpation of joint spaces. On December 2010 VA examination, the Veteran reported increased pain and instability over the last 5 years. He reported pain at a daily average of 8/10, which is worse in the afternoon and increased to 9/10. He stated that he experiences morning stiffness that lasts about 2 hours and that he has weakness and feels unsteady as the day goes on. He reported falling about three times over the last years. He also reported occasional swelling. The Veteran uses a combination of a cane and a walker. If he goes to the store, he uses a wheelchair. He also has a golf cart he uses to get around his property. The examiner noted that the Veteran is able to walk about 50 feet and go up/down 1-2 flights of stairs very slowly. The examiner also noted that the Veteran has problems with loss of balance or falls and that his wife helps him with getting his socks on. On physical examination, the Veteran's posture and gait was straight with a mild limp and instability with use of cane in right hand. The knees were symmetric with no edema or crepitus; they were nontender to palpation. Left knee flexion was to 80 degrees and limited to 60 degrees with pain and after repetitive use. Left knee extension was normal and not additionally limited by pain or repetitive use. Diagnostic imaging of the left knee revealed an unremarkable status post left knee arthroplasty. The examiner diagnosed the Veteran with severe osteoarthritis of the left knee. The examiner noted the Veteran's limited mobility and also his instability of gate, which he stated may be complicated because of diabetic neuropathy and peripheral artery disease of the feet. The examiner further stated that there is functional impairment of the left knee with limited motion and additional functional impairment due to pain, pain on repeated use, and lack of endurance or incoordination. Legal Criteria and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher one 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C.A. § 5110(b)(2); Hart, 21 Vet. App. 505, 509 (2007). Here, the relevant evidentiary window begins October 2009 (one year before the Veteran filed his claim for an increased rating), and continues to the present time. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Residuals of a knee replacement are rated under 38 C.F.R. § 4.71a, Code 5055, which provides that replacement of the knee with a prosthesis warrants a 100 percent rating for a one-year period following implantation of the prosthesis. Following the one year period, a maximum 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, rate by analogy to Codes 5256, 5260, 5261. The minimum rating to be assigned is 30 percent. The one year period for a total rating following implantation has passed, and the disability is currently rated the minimum rating of 30 percent for the residuals. Upon close review of the evidence, the Board finds that the current residuals, as shown in the treatment record and on December 2010 VA examination, are shown to include severe painful motion on use, warranting the maximum schedular rating of 60 percent for the disability. Notably, the Veteran has reported a worsening, to include increased pain and instability, of his left knee disability over the past 5 years. He has reported a daily average pain of 8/10, which increases to 9/10 during the day. He also has reported weakness, stiffness, and unsteadiness, and having fallen three times over the past year. The Board notes that the Veteran uses a cane and a walker to ambulate, in addition to occasionally using a wheelchair or a golf cart to move around. Further, the Board notes that the Veteran's wife helps him with putting on his socks and that the Veteran is only able to walk about 50 feet. Physical examination of the Veteran's left knee revealed a significant limitation in range of motion with flexion to only 80 degrees (140 degrees is normal), and flexion limited to 60 degrees with pain and on repetitive use. The Board does note that extension was normal. The examiner concluded that because of this limited motion and the pain and lack of endurance/incoordination experienced by the Veteran, there was functional impairment of the left knee. Considering the findings from the VA treatment records and the December 2010 examination and resolving reasonable doubt in the Veteran's favor, the Board concludes that the criteria for a 60 percent rating are met. The Board notes that no other applicable Code would provide a higher rating, including Code 5003 for arthritis, or any other Code pertaining to the knee. As the Veteran's left knee disability is now assigned the maximum schedular rating, there remains for consideration the question of whether a higher (than 60 percent) rating might be warranted on an extraschedular basis. Before considering an extraschedular rating though, the Board notes that it has considered Mittleider and attributed all potentially service-connected symptoms to one service-connected condition or another. See Mittleider v. West, 11 Vet. App. 181 (1998). The Veteran's impairment is adequately contemplated by the rating criteria. Regarding an extraschedular rating, the Veteran's left knee disability is not shown to produce marked interference with employment (as the Veteran is retired), nor has it required frequent hospitalizations, or involved any other factors of like gravity suggesting that the schedular criteria are inadequate to rate the disability. Consequently, referral of the case for consideration of an extraschedular rating in excess of 60 percent is not warranted. See 38 C.F.R. § 3.321; see also Thun v. Peake, 22 Vet. App. 111, 115 (2008), Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A 60 percent rating is granted for the Veteran's residuals of a left knee replacement, subject to the regulations governing payment of monetary awards. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs