Citation Nr: 1326820 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-28 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a left knee disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to February 1978. This appeal is before the Board of Veterans' Appeals (Board) from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the Veteran's 10 percent disability rating for the left knee disability, and granted a temporary total rating of 100 percent under the provisions of 38 C.F.R. § 4.30 from June 9, 2009, through August 1, 2009, followed by restoration of the schedular 10 percent rating from August 1, 2009. The Veteran appealed for a higher rating. The decision also granted a separate 10 percent disability rating for a residual scar status post-partial left knee replacement, effective September 3, 2009. The Veteran has not disagreed with the rating or effective date assigned, thus that matter is not on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran seeks an increased rating for his service-connected left knee disability, which is evaluated as 10 percent disabling. Specifically, the Veteran asserts that following a June 2009 left medial unicondylar arthroplasty, a 13-month evaluation of 100 percent under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5055, should have been assigned. Under Diagnostic Code 5055, a 100 percent evaluation will be assigned for a prosthetic replacement of a knee joint for one year following implantation of the prosthesis. Thereafter, the service-connected knee disability will be evaluated based upon any residual impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Note (1) indicates that the 100 percent rating for one year following implantation of the prosthesis will commence after the initial grant of the one-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. By history, in June 1978 service connection was granted for a left knee disability with moderate loss of left rectus femoris with healed operative scars. A 10 percent rating was assigned under Diagnostic Code 5257, effective March 1, 1978. In May 2009, the RO received the Veteran's claim for an increased rating. In June 2009, the Veteran underwent left medial unicondylar arthroplasty. The post-operative diagnosis was degenerative joint disease of the left knee. By a September 2009 rating decision, the RO granted a temporary total rating of 100 percent under the provisions of 38 C.F.R. § 4.30 from June 9, 2009, through August 1, 2009, followed by restoration of the schedular 10 percent rating from August 1, 2009. The RO explained that the Veteran had undergone partial knee replacement and the provisions of Diagnostic Code 5055 pertained only to total knee replacement. Therefore, the RO indicated that the left knee disability would not be rated for total knee replacement but would be rated based on limitation of motion, painful motion, and subluxation or instability. The Board acknowledges that a VA Compensation and Pension Bulletin issued in February 2009 noted that surgical procedures that involve only partial joint replacement normally do not warrant 13 months of convalescence. However, the Board notes that the provisions of Diagnostic Code 5055, pertaining to knee replacement (prosthesis) do not differentiate between total and partial knee replacements. There is no indication of any intent on the part of VA to limit the application of Diagnostic Code 5055 only to total knee replacements. See Fed. Reg. 45,348 (final rule). The Board is not bound by the 2009 Bulletin and notation contained therein. To the extent that the scope of the Diagnostic Code is ambiguous, that ambiguity must be resolved in the Veteran's favor. See Brown v. Gardner, 513 U.S. 115, 118 (1994); Kilpatrick v. Principi, 16 Vet. App. 1, 6 (2002). Accordingly, if the Veteran received a prosthesis for his knee replacement, the provisions of Diagnostic Code 5055 are applicable, as it applies to the partial or unicompartmental knee replacement. As such, additional action is required in this regard. Further, the Veteran was last afforded a VA examination to evaluate his left knee disability in September 2009. The findings of the September 2009 examination are now approximately four years old and are somewhat stale. A new examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Veteran's disability picture must be considered in light of all relevant rating codes, to include but not limited to, Diagnostic Code 5055 for knee replacement, as well as consideration of separate or higher disability ratings under Diagnostic Codes 5003, 5010, 5260, 5261, for painful motion of an arthritic joint, and Diagnostic Code 5257 for recurrent subluxation or lateral instability. Finally, relevant ongoing medical records should be obtained, to include any VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Advise the Veteran that he may submit any evidence or information he might have to support his claim, to include lay statements. 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for the left knee disability. After securing any necessary release, the RO/AMC should request any relevant records identified which are not duplicates of those already contained in the claims file. The RO/AMC must make two attempts for the relevant private treatment records. If any requested records are not available the Veteran should be notified of such. 3. Schedule the Veteran for a VA examination to ascertain the current nature and severity of his service-connected left knee disability. The claims folder should be reviewed by the examiner, and the report should note that review. The examiner should provide a rationale for the opinion and reconcile it with all pertinent evidence of record. Specifically, the VA examiner's opinion should address the following: a) Conduct all necessary tests, to include x-rays and range of motion studies of the left knee in degrees. b) Identify all orthopedic pathology related to the Veteran's left knee disability, to include arthritis. c) State whether a prosthesis is present, regardless of whether the knee replacement was partial or total. d) Additionally, if a prosthesis is present, specify whether the Veteran's knee replacement is productive of severe painful motion or weakness in the affected extremity. e) State whether any ankylosis (favorable or unfavorable) is present. f) Specify whether the Veteran's left knee disability is manifested by genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated), or by malunion of the tibia or fibula, or nonunion of those bones, with loose motion, requiring a brace. g) State whether the service-connected left knee disability is accompanied by recurrent subluxation or lateral instability, and whether any recurrent subluxation or lateral instability is slight, moderate, or severe. h) State whether there is a dislocated or removed semilunar cartilage. State whether there are frequent episodes of locking or effusion of the joint. i) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain on use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. If feasible, any additional limitation should be portrayed in terms of the degree of additional range of motion loss. j) State what impact, if any, the Veteran's left knee disability has on his activities of daily living, including the ability to obtain and maintain employment. 4. Then, readjudicate the claim with consideration of all relevant rating codes, to include but not limited to, Diagnostic Codes 5055, 5003, 5010, 5260, 5261, and 5257. If any benefit sought remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 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). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).