Citation Nr: 1320853 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 00-20 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a schedular evaluation in excess of 30 percent for post operative residuals of a total right knee replacement from June 26, 2008. 2. Entitlement to an extraschedular evaluation for post operative residuals of a total right knee replacement from December 1, 2001. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to April 1978. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2002, June 2004, and August 2004, the Board remanded this case for further development. In August 2007, the Board denied entitlement to an increased evaluation for post operative residuals of a total right knee replacement. The Veteran appealed. In March 2009, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand. Pursuant to the joint motion, the Board in July 2009 remanded the case for additional development. In October 2010, the Board, in pertinent part, denied entitlement to an increased rating for post operative residuals of a total right knee replacement from December 1, 2001 to June 25, 2008, and remanded the issue of entitlement to an increased rating from June 26, 2008 for additional development. The Veteran again appealed. In August 2011, the Court granted a joint motion for remand. The joint motion found that the October 2010 Board decision failed to address the question of entitlement to an extraschedular evaluation for post operative residuals of a total right knee replacement pursuant to 38 C.F.R. § 3.321(b) for the period from December 1, 2001 to June 25, 2008. The joint motion noted that the appellant specifically abandoned any appeal to the question of entitlement to an increased schedular rating for this term. Pursuant to the joint motion, the Board remanded the issue of entitlement to an extraschedular rating for further development in April 2012. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. The issue of entitlement to an extraschedular evaluation for post operative residuals of a total right knee replacement from December 1, 2001, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center, in Washington, DC. FINDING OF FACT Since June 26, 2008, the objective evidence does not show right knee ankylosis, right knee extension limited to 30 degrees, or nonunion of the tibia and fibula with loose motion requiring brace; and the overall disability picture is not consistent with a finding of severe painful motion or weakness in the affected extremity. CONCLUSION OF LAW From June 26, 2008, the criteria for a schedular evaluation in excess of 30 percent for post operative residuals of a total right knee replacement are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in August 2002, March 2003, and August 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. In March and August 2006, VA notified the Veteran of how disability ratings and effective dates are determined. The case was most recently adjudicated in May 2013. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Although VA outpatient treatment records indicate that the Veteran has received treatment at non-VA facilities, he has not identified that facility or provided authorization for VA to obtain records despite notice letters requesting him to do so. In October 2010, the Board remanded the issue of entitlement to a increased rating for post operative residuals of a total right knee replacement from June 26, 2008 for additional development. The Board directed the RO to schedule the Veteran for another VA examination to assess the current severity of his right knee disability. The Board indicated that the examination was to be conducted by an orthopedist and that the examiner should attach a copy of his or her Curriculum Vitae to the examination report. A VA examination was conducted in April 2013 by a medical doctor. The examiner did not attach a copy of her Curriculum Vitae to the examination report and it is unclear whether she specializes in orthopedics. Nonetheless, as a medical doctor the examiner had the qualifications necessary to conduct the requested VA examination and there no argument has been made, and no evidence has been presented, by the appellant that she was not qualified. See Cox v. Nicholson, 20 Vet. App. 563, 568 - 570 (2007) (rejecting argument that a medical opinion by a nurse practitioner is not competent medical evidence). The examination report contains detailed findings sufficient to make a determination in this case. Therefore, the Board finds that the RO has substantially complied with the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on 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 ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 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). Hence, each following analysis is undertaken with consideration that staged ratings may be warranted. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath, 1 Vet. App. at 595. The Veteran underwent a total right knee replacement in October 2000. He was awarded a 100 percent evaluation through November 30, 2001, and a 30 percent evaluation from December 1, 2001. As noted above, the Board previously denied entitlement to a schedular evaluation in excess of 30 percent from December 1, 2001 to June 25, 2008. At issue here is what schedular evaluation is warranted from June 26, 2008. Under Diagnostic Code 5055, a 100 percent rating is warranted for one year following implantation of the prosthesis, as was awarded in this case. Following this one-year period, the minimum rating is 30 percent. A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residuals weakness, pain, or limitation of motion are rated by analogy to diagnostic codes 5256, 5261, or 5262. Under Diagnostic Code 5256, knee ankylosis in flexion between 20 and 45 degrees warrants a 50 percent rating, while knee ankylosis in flexion between 10 and 20 degrees warrants a 40 percent rating. A favorable angle in full extension, or slight flexion between 0 and 10 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Under Diagnostic Code 5261, a 40 percent evaluation is warranted when extension is limited to 30 degrees; and a 50 percent evaluation is warranted when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5262, a 40 percent evaluation is warranted when there is nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. For VA purposes, normal range of motion of the knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating for functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, Vet. App. 7 (1996). Analysis A June 26, 2008 VA orthopedic note reflects the Veteran's history of multiple surgeries on his right knee, including an anterior cruciate ligament reconstruction and a total knee arthroplasty. The appellant reported that his knee had been doing well following the surgery, but recently it had been giving him problems. He described diffuse pain in his knee that bothered him when he used it a lot. An X-ray revealed a screw that appeared to be out of the bone, but was not palpable on physical examination. The knee was stable to varus and valgus stress, but there was substantial laxity with testing. The knee was stable to anterior and posterior translation. He walked without any noticeable limp. A bone scan revealed no obvious loosening of his total knee component. There was a question of a possible infection and he was given a one-month supply of antibiotics to see if his pain improved. If not, the physician believed that the pain was likely from some mild instability secondary to polyethylene wear. The examiner anticipated that the appellant would need a revision with exchange of his polyethylene liner. A March 2009 VA orthopedic note reflects that the Veteran reported that he was having a lot of pain and instability. On physical examination of his right knee, range of motion was from 0 degrees of extension to 120 degrees of flexion. The knee was stable to varus stress but opened with valgus stress in full extension as well as at 30 degrees. Anterior and posterior drawer signs and Lachman's test were negative. He had mild tenderness over the lateral aspect of his distal femur consistent with an anterior cruciate ligament screw, which was noted to be outside the bone. The impression was an "inappropriate" polyethylene spacer in the right total knee arthroplasty. The physician believed that the Veteran would benefit from undergoing a surgical revision. Later that month, a VA primary care note indicates that the Veteran walked without difficulty and without the use of a cane or walker. May 2009 right knee X-rays showed no evidence of loosening or infection. The previous cruciate ligament repair screw was unchanged in position and lying outside the cortex. An old diaphyseal proximal fibular fracture was noted. Soft tissues were normal. The impression was right knee total arthroplasty without evidence of prosthesis complication. A July 2010 VA orthopedic surgery note reflects that the Veteran's knee was still painful and unstable. Surgery was scheduled in December 2010; however the surgery was not performed. An April 2011 note reflects that the Veteran planned to have the surgery done at a non-VA facility and that he did not want to be seen at the VA for his right knee for Compensation and Pension purposes. A June 2011 VA emergency room note reflects that the Veteran was seen for nausea and diarrhea. He reported chronic pain issues with his back and knee, but denied any pain at that time. Later that month, a VA orthopedic note reflects that the Veteran complained of increasing pain over the anterior tibia with activity. On physical examination of the right knee, there was mild varus/valgus instability but with good endpoints. Range of motion was from 0 degrees of extension to 120 degrees of flexion. The plan was to obtain radiographs of the knee and it was noted that he might be experiencing poly wear. An August 2011 VA orthopedic note reflects that the Veteran's right knee was tender to palpation. There was instability with varus and valgus stress. Active range of motion was from 10 degrees of extension to 120 degrees of flexion. Passive range of motion was from 0 degrees of extension to 120 degrees of flexion. Surgery was scheduled in September 2011, but was not performed. A January 2012 primary care note reflects that the Veteran's wife had broken her ankle and he was caring for her and had not yet rescheduled the surgery. A September 2012 VA orthopedic note reflects that the Veteran complained of aching pain over the lateral and inferior/anterior right knee joint, which worsened with use. He also complained of joint clicking, and that that his knee gave out on him occasionally causing him to hit his knee against things. He requested a knee brace with more padding, but was not interested in surgical intervention. On physical examination there was tenderness to palpation over the lateral joint margin. There was no erythema, warmth, or effusion. Anterior and posterior drawer tests were abnormal with anterior cruciate and posterior cruciate ligament laxity. October 2012 X-rays of the right knee revealed a well fixed prosthesis in good position. There was evidence of prior anterior cruciate ligament reconstruction. The reviewer agreed with recommendation for a brace. An October 2012 VA physical therapy note reflects that the Veteran complained of banging his right knee into things and requested additional padding. The physical therapist indicated that the Veteran's complaints of instability were inconsistent with imagining reports. A February 2013 VA occupational medicine note reflects that the Veteran slipped and fell at work and twisted his right knee. He could bear full weight on his knee. There was tenderness, but no bleeding. The assessment was contusion. It was noted that he was electing to see a non-VA provider for his care. A March 2013 VA primary care note reflects that the Veteran indicated that he was not ready for surgery on his right knee. He reported that his brace did not fit well and the physician consulted orthopedics for evaluation for a DonJoy anterior cruciate ligament brace. During an April 2013 VA examination, the Veteran reported that he was allergic to his new brace and was wearing his old brace. He complained of chronic lateral and inferior/anterior knee joint pain, as well as stiffness and giving way. Range of motion of the right knee was from 0 degrees of extension to 115 degrees of flexion. Painful motion began at 100 degrees of flexion. It was later noted that there was pain from 5 to 0 degrees in extension. With three repetitions, there was no change in range of motion. Functional impairment involved less movement than normal, pain on movement, instability of station, and disturbance of location. There was tenderness to palpation. Muscle strength was 4/5 (active movement against some resistance) in flexion and extension. Anterior/posterior instability was 1+ (0 to 5 millimeters). There was no medial-lateral instability and no patellar subluxation/dislocation. The examiner indicated that the Veteran had an intermediate degrees of residual weakness, pain or limitation of motion following total right knee replacement and did not have severe painful motion or weakness. It was noted that the Veteran constantly used a brace and occasionally used a cane. A history of X-ray evidence of arthritis was noted. The examiner opined that the Veteran's right knee disability did not impact sedentary work, but did impact physical work that required prolonged walking, standing, and lifting. In this case, the 30 percent evaluation currently in effect for residuals of right total knee arthroplasty is appropriate. At no time since June 26, 2008 has there been any evidence of knee ankylosis (either favorable or unfavorable). There has been no evidence of a limitation of knee extension to 30 degrees even when considering any additional limitation with repetitive motion. There has also been no evidence of any nonunion or malunion of the tibia and fibula. Multiple X-rays have revealed a well fixed prosthesis in good position. The April 2013 VA examination revealed some painful motion and weakness in the appellant's right lower extremity, but not severe painful motion or weakness. Painful motion began at 5 degrees of extension and 100 degrees of flexion and muscle strength was 4/5 in flexion and extension. The examiner opined that there was an intermediate degree of residual weakness and painful motion, but not severe. Under these circumstances, a schedular evaluation in excess of 30 percent for the Veteran's service-connected residuals of right total knee arthroplasty from June 26, 2008 is not warranted under Diagnostic Code 5055. The Board acknowledges the findings of anterior and posterior instability and has considered whether a separate rating is warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5257. While Diagnostic Code 5055 specifically refers to diagnostic codes that are for application with intermediate degrees of disability, it does not list Diagnostic Code 5257. However, once the knee joint is replaced, any arthritis is gone and there is no basis for assigning separate evaluations based on arthritis and instability. See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98; 63 Fed. Reg. 56,704 (1998) (a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257). On review, any complaints or findings related to instability are contemplated in the minimum 30 percent evaluation currently assigned. The Board further notes that a separate noncompensable evaluation for right knee surgical scars from April 30, 1997 has been assigned under Diagnostic Code 7805. In determining whether an evaluation greater than 30 percent is warranted, the Board considered the doctrine of reasonable doubt. Under the circumstances of this case, however, the preponderance of the evidence is against the appellant's claim and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to a schedular evaluation in excess of 30 percent for post operative residuals of a total right knee replacement from June 26, 2008, is denied. REMAND As noted above, a 2011 joint motion found that the October 2010 Board decision failed to address the question of entitlement to an extraschedular evaluation for post operative residuals of a total right knee replacement pursuant to 38 C.F.R. § 3.321(b) for the period from December 1, 2001 to June 25, 2008. Specifically, it was noted that the Veteran reported continued pain since the surgery without any relief from pain medications and that he had not been employed since 1996. Although more recent evidence indicates that he has been employed since 2005, he reported that his employer did not make accommodations for him and when he walked more than 100 yards, and that he suffered right leg and foot tingling and right leg weakness and instability. There is also evidence of additional pain and instability arguably associated with an anterior cruciate screw that is out of the bone and wearing of the prosthesis such that a surgical revision has been recommended. Pursuant to the April 2012 remand, the RO considered whether referral for extraschedular was warranted, but found that it was not. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As indicated in Thun, the Board may not assign an extraschedular rating in the first instance. Rather, it must specifically adjudicate whether to refer a case for extraschedular evaluation and, if the criteria do not contemplate the symptoms and there is evidence of marked interference with employment (the first two steps of the inquiry), the third step is to remand the claim to the RO to refer it to the Under Secretary for Benefits or the Director of Compensation (formerly the Director of Compensation and Pension Service) to determine whether an extraschedular rating is warranted. See also Barringer v. Peake, 22 Vet. App. 242 (2008). Here, the Board finds that not all of the Veteran's symptoms are contemplated in the rating criteria. Furthermore, the Veteran, who is currently employed as a Food Service Manager at a VA Medical Center, has described having to be on his feet for much of his day. He has reported that his right knee disability interferes with his ability to perform his job and the April 2013 VA examiner opined that prolonged standing and walking would be very difficult for him. Based on the foregoing, the Board finds that the Veteran has made sufficient showing to warrant referral for extraschedular consideration. The Board must therefore remand the claim for an extraschedular evaluation for postoperative residuals of total right knee replacement to the RO for such referral. Accordingly, the claim of entitlement to an extraschedular evaluation for postoperative residuals of a total right knee replacement from December 1, 2001, is REMANDED for the following action: Refer the claim of entitlement to an extraschedular evaluation for post operative residuals of a total right knee replacement from December 1, 2001, to the Under Secretary for Benefits or the Director of Compensation. If that review results in a decision denying all possible benefit return the case to the Board after issuing a supplemental statement of the case. The appellant 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 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs