Citation Nr: 1330422 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 11-24 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an increased rating for left knee disability, currently assigned separate evaluations of 0 and 30 percent, to include whether the Veteran is entitled to application of 38 C.F.R. § 4.71a, Diagnostic Code 5055. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active service from July 1994 to October 1996, and from July 1999 to February 2006, when he was placed on the Temporary Disability Retired List. He was placed on the Permanent Disability Retired List in March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified before the undersigned at a videoconference hearing held in June 2013. Additional evidence was submitted following the hearing, accompanied by a waiver of the Veteran's right to initial RO consideration of that evidence. The record reflects that the RO has developed the issue on appeal as one limited to entitlement to a temporary total evaluation on the basis of 38 C.F.R. § 4.30. For the reasons below, the Board has recharacterized the claim. In the November 2009 claim which is the subject of this appeal, the Veteran indicated that he was seeking "an increased rating based on convalescence based on left total knee arthroplasty." While understandable that the RO included consideration of 38 C.F.R. § 4.30 in light of the Veteran's reference to "convalescence", the RO did not consider that the basis of the Veteran's claim is a total knee replacement that he contends is part and parcel of his service-connected left knee disability. Where a Veteran undergoes a service-connected total knee replacement, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5055 are implicated, which provide for assignment of a schedular 100 percent rating for a period of 1 year predicated on the need for convalescence. Hence, the Veteran's request for an increased rating based on the need for convalescence following total knee replacement is, at the very least, clearly a claim for an increased rating for the knee disorder. It is unclear to the Board why the RO did not construe the Veteran's claim as one involving an increased schedular rating. Nevertheless, the Board finds that this is what the Veteran did intend, and the Board has recharacterized the issue accordingly. The Board notes that assignment of a schedular 100 percent rating under Diagnostic Code 5055 provides at least the same benefit as a temporary total rating under the provisions of 38 C.F.R. § 4.30, as the latter is limited in time to a maximum of 1-year. At the June 2013 hearing, the Veteran's representative referenced an August 2008 rating action which decreased the evaluation assigned one component of the left knee disorder to noncompensably disabling; he stated that it was an "error" to reduce the assigned rating. As the representative undoubtedly understands, that matter is not before the Board, as neither the Veteran nor his representative perfected an appeal of the August 2008 decision. The Board also points out that the representative has not alleged that the August 2008 actually contained clear and unmistakable error, or identified such an error. Consequently, the Board will not further address the reduction in disability benefits. 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). The issue of the appropriate rating assignable for the Veteran's left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Immediately prior to June 2009, the Veteran was assigned a 30 percent evaluation for limitation of left knee extension, and a noncompensable evaluation for left knee disability (status post anterior cruciate ligament reconstruction). 2. In June 2009, the Veteran sustained a self-inflicted gunshot injury to his left knee. 3. In November 2009, the Veteran underwent a left total knee arthroplasty. 4. The Veteran's total left knee arthroplasty was necessitated primarily by his service-connected left knee disability, and not by the June 2009 gunshot wound injury. CONCLUSION OF LAW The criteria for application of 38 C.F.R. § 4.71a, Diagnostic Code 5055 to the evaluation of the Veteran's service-connected left knee disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5055 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has certain duties to notify and assist a claimant in the course of his or her claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). The Board notes that the RO provided the Veteran with a notice letter in November 2009, which primarily advised him of the criteria for substantiating a claim under 38 C.F.R. § 4.30. As explained in the Introduction, the Board has recharacterized the matter on appeal as involving an increased rating claim, rather than a claim seeking the more limited benefits of 38 C.F.R. § 4.30. Given, however, the disposition of the current portion of the appeal, the Board finds that the Veteran is not prejudiced by the limited notice. On remand, the RO will have the opportunity to provide the Veteran with proper notice concerning increased ratings claims. Factual background In an April 2007 rating decision, service connection for left knee disability (characterized as status post anterior cruciate ligament (ACL) reconstruction) was granted, with an assigned 30 percent evaluation. A separate 30 percent rating was assigned for loss of extension of the knee. In an August 2008 rating action, the evaluation assigned the left knee disorder component comprising the residuals of ACL reconstruction was reduced to noncompensably disabling. The Veteran disagreed with that decision, and was issued a statement of the case in June 2009, but neither the Veteran nor his representative thereafter offered any further reference to the propriety of the reduction until the June 2013 Board hearing, and no further evidence was received until after August 2009 (the expiration of the one-year period from notice of the rating action, and 60 days from the issuance of the statement of the case). The Veteran's service treatment records, and private treatment records through March 2008, show that he injured his left knee in 2002, and thereafter underwent several operations on the joint which led to his placement on the Temporary Disability Retired List (TDRL). The knee operations included ACL reconstruction, notchplasty revision, lateral release, chondroplasty, medial meniscectomy, arthroscopic debridement, lysis of adhesions with synovectomy, and lateral postlateral corner reconstruction. During February 2007 VA examinations, the Veteran exhibited an antalgic gait, left leg muscle weakness and atrophy, swelling and laxity. He was able to extend the left knee to 20 degrees and flex it to 55 degrees, with pain present at the endpoints. There was severe instability in the knee. A January 2008 examination associated with evaluation of the Veteran's TDRL status noted that he initially sustained an ACL injury, for which he underwent ACL reconstruction, but then developed arthrofibrosis requiring manipulation with lysis of adhesions and a lateral partial meniscectomy. The report notes he was eventually diagnosed with posterolateral corner instability, requiring reconstruction. Physical examination showed he had a markedly antalgic gait. He demonstrated extension to 5 degrees and flexion to 125 degrees, with pain, but with no effusion. The knee was stable to varus and valgus, but there was some ACL instability. There was decreased sensation around the knee and "4-" strength with give-way weakness. The examiner concluded that the Veteran's left knee disorder was stable. The Veteran was placed on the Permanent Disability Retired List in March 2008. The Veteran attended a VA examination in June 2008, at which time the examiner noted that the Veteran used a brace, and favored the left leg. He was unable to tolerate having the knee fully extended. There was tenderness over the knee and minimal pain with movement. The ligaments were stable. The knee was 20 degrees short of full extension, and he could not perform repetitive motion testing, or kneel or squat. The examiner's impression was of severe disability in the knee with very limited activity. X-ray studies showed mild lateral jointline cartilage space loss. On file is the report of a July 2008 VA surgery consultation for the veteran. Physical examination at that time disclosed extension to 20 degrees and flexion to 117 degrees, with weakness and atrophy but no instability or laxity. The clinician concluded that there was nothing requiring a supportive brace. At a July 2008 VA psychiatric examination, the Veteran reported that he had been told by physicians that he needed a left knee replacement, but that he was too young for such an operation. He reported that at times, he felt so frustrated that he thought of shooting his leg with a shotgun to rid himself of the pain. At a May 2009 psychiatric examination, he again indicated that he was recommended for eventual knee replacement surgery, but that he would have to wait at least five years because of his age, and stated "sarcastically" that at some point he might shoot his leg off because he then likely would get surgery. Private medical records on file for 2009 disclose that the Veteran was admitted on June 16, 2009, for a gunshot wound to his left knee. He reportedly was firing a .40 caliber handgun when he had a misfire and shot himself in the knee. Physical examination showed a small entry wound in the anteromedial aspect of the leg just proximal to the knee, and an exit wound inferolateral to the knee. X-ray studies showed a comminuted nondisplaced medial femoral condyle fracture. The Veteran underwent an open reduction and internal fixation, and incision and drainage. He was discharged three days after admission with instructions to not bear weight on the left leg. Private medical records through November 2009 document follow visits for knee pain and the healing wound. An August 2009 entry notes that he had experienced an articular cartilage injury. An entry for early November 2009 indicates that the Veteran had continued significant pain and limitations. X-ray studies showed articular cartilage thinning medially, associated with arthrosis. The Veteran thereafter underwent a total left knee arthroplasty that month. The operative report indicates that, historically, the Veteran had sustained a multiple ligament injury treated with reconstruction in the past, and that he "then sustained" a gunshot wound to the knee and destroyed the medical femoral condyle and associated articular cartilage, following which he "continued to have" severe pain and activity limitations. Later in November 2009, his staples were removed and X-ray studies showed excellent position of the prosthesis. The private records show the Veteran required further surgery in January 2012 and August 2012. In a September 2009 statement, Dr. D. Hassinger noted that the Veteran had been treated with fixation for a knee fracture. He explained that at the time of surgery, it was noted that the Veteran had severe cartilage damage that would likely require a knee replacement in the near future. He advised that a total knee arthroplasty was now indicated. In a statement received in December 2010, Dr. Hassinger explained that the Veteran's original knee injury was related to service, and included multiple ligament and meniscus tears, as well as lateral release and shaving of the patella. He noted that at the time of "surgery", it was noted that the Veteran had a chronic ACL tear and severe cartilage damage located on top of the tibia on his main knee joint. Dr. Hassinger explained that with all the surgeries the Veteran underwent in service, his tibia knee joint had become bone-on-bone with chronic arthritis, severe pain, and limited motion. Dr. Hassinger concluded that the Veteran's eventual need for a total knee arthroplasty was related to his multiple ligament injury and severe cartilage damage, chronic ACL tear and chronic arthritis from his prior surgeries in service. He emphasized that the gunshot wound did not in any way substantially contribute to the eventual need for arthroplasty. The Veteran attended a VA examination in March 2011. He reported that his left knee was still hurting and he was wearing a brace when he accidentally shot himself in the knee. The examiner concluded that it was less likely than not that the left total knee arthroplasty was caused by or a result of the service-connected ACL repair. In explanation, the examiner noted the sparse private documentation of the knee condition. The examiner found that it appeared the knee had been essentially stable for several years prior to the injury, and exhibited only minimal to mild laxity by 2008, and only mild cartilage loss in July 2008. He noted that the sparse private records received referenced significant loss of cartilage in connection with the gunshot wound, namely that the records discussed a severely comminuted medial femoral condyle with little supporting bony structure beneath the cartilage, and that the cartilage was anatomically reduced in connection with the open reduction and fixation procedure. He also pointed to a June 2009 treatment note indicating that total left knee arthroplasty may be required due to the "severe injuries he has sustained." He also noted that an August 2009 note indicated that with the articular cartilage injury he was likely to develop arthritis. The physician noted that Dr. Hassinger in September 2009 referred to a severe injury to the left knee, with severe cartilage damage found at the time of surgery, and that in November 2009 Dr. Hassinger described X-rays showed thinning of the articular cartilage medially, which the examiner noted was not present in the July 2008 X-rays; this suggested to the examiner that the cartilage loss was related to the medial femoral condyle comminuted fracture. He also noted that the November 2009 operative report indicated that the Veteran sustained a gunshot wound that destroyed the medial femoral condyle and associated articular cartilage. The examiner acknowledged Dr. Hassinger's opinion, but concluded that until the 2010 letter, the evidence indicated that the gunshot wound was considered the cause of the need for arthroplasty. In an October 2012 addendum opinion, the VA physician reviewed private records for 2006 suggesting that additional surgery was contemplated. The examiner noted that when examined in June 2008, the Veteran exhibited severe limitations in range of motion and instability, but that a July 2008 consultation showed much improved range of motion. The examiner explained that his opinion remained unchanged, and that the proximate cause of the left total knee arthroplasty was the significant pain, range of motion limitation and disability following the gunshot injury which were not noted during the July 2008 consultation. In a May 2013 statement, Dr. Hassinger indicated that the Veteran's eventual need for a knee replacement was related to the service knee injury. He reviewed the Veteran's medical records, including those pertaining to the prior surgeries in service. He noted that the posterolateral corner insufficiency in 2005 and laxity of the ACL graft in 2005 were of particular importance. He explained that it was well established in the orthopedic literature that concomitant ACL and posterolateral corner injuries where the posterolateral corner diagnosis is missed result in failed ACL grafts leading to eventual knee arthritis. He further explained that it appeared from the medical records that that the posterolateral corner injury was missed in 2002, and that isolated ACL reconstruction was performed. He noted that the graft loosened by 2005, and revision ACL reconstruction was never performed because of the graft laxity. He explained that chronic ACL deficiency was well known to lead to accelerated knee arthritis, which he believed was the main contributing factor to the knee replacement. Analysis As explained previously, the Board finds that the instant appeal is more appropriately characterized as involving the question of entitlement to a total schedular rating under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5055 than it does the matter of entitlement to a temporary total evaluation under 38 C.F.R. § 4.30. Although the Board normally does not limit a decision to what is effectively a subissue of an increased rating claim, the manner in which the RO has developed the appeal has compelled the Board to first determine whether the Veteran's left total knee arthroplasty is related to the service-connected left knee disorder, for the purpose of an increased rating. The Veteran's service-connected left knee disorder component associated with the status post ACL reconstruction is currently evaluated as noncompensably disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board notes that pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, with a prosthetic replacement of a knee joint, a 100 percent evaluation is assignable for 1 year following implantation of the device. Following the referenced period, the diagnostic code provides for 30 percent and 60 percent ratings, based on the residuals. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2013). The Veteran underwent a left total knee arthroplasty in November 2009, and this is not in dispute. Also undisputed is that the Veteran sustained a self-inflicted gunshot wound to his left knee in June 2009. At issue is whether the knee replacement is related to the service-connected left knee disorder, or whether it was instead undertaken in response to the intercurrent June 2009 gunshot wound. The medical records prior to the June 2009 gunshot wound show that the Veteran did evidence a measure of arthritis in the left knee. The records also documented that the Veteran underwent multiple surgeries on his knee, including ACL reconstruction, and, eventually, posterolateral corner reconstruction. The records associated with the gunshot wound reflect a large loss of articular cartilage. The Board notes that the Veteran reported twice to examiners that his physicians were considering him for a total left knee replacement, although such was not imminent in light of his relatively young age. A Veteran is competent to report what his physicians reportedly told him about a diagnosis of disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds this principle is equally applicable to an account of what a physician purportedly told the Veteran about the need for knee replacement surgery. The Board has no reason to doubt the credibility of the Veteran in this regard. The evidence in favor of the claim consists of the statements of Dr. Hassinger, the physician who performed the total knee arthroplasty. In his December 2010 and May 2013 statements in particular, he explained that given the Veteran's service history of knee surgeries, especially the need for posterolateral corner reconstruction years after the ACL reconstruction, the Veteran was prone to develop arthritis in the knee. He further explained that the Veteran's left knee disability was prompted by the arthritis stemming from the service-connected surgeries, and emphasized that the gunshot wound did not play a role in the total knee replacement. The Board notes that he offered a rationale for his opinion that was based on a review of the record and specific reference to certain findings. The evidence against the claim consists of the March 2011 examination report and October 2012 addendum. The examiner reviewed the medical records, and determined that the intercurrent gunshot wound was the precipitating cause of the total knee arthroplasty. Like Dr. Hassinger, the examiner reviewed the medical records and supported his opinion by specific reference to certain medical documents. After review of the record, the Board is unable ascribe greater probative value to either opinion. Both Dr. Hassinger and the VA examiner offered detailed opinions with accurate reference to medical documents that support their respective opinions. The Board notes that the total left knee arthroplasty was not performed contemporaneously with the gunshot wound, but rather approximately 5 months later. The timing of the arthroplasty thus does not point to one narrative over the other. Given that the Board is unable to find that the opinions for or against the claim are of greater probative value, the Board finds that the evidence is in equipoise as to whether the total left knee arthroplasty is related to the service-connected left knee disorder. The Board consequently concludes that the Veteran is entitled to application of 38 C.F.R. § 4.71a, Diagnostic Code 5055 in connection with his increased rating claim. The Board emphasizes that the instant decision only establishes that the Veteran is entitled to application of Diagnostic Code 5055. The matter of the calculation of the dates of the mandatory 100 percent schedular evaluation, as well as the matter of the appropriate rating for the left knee disorder following the referenced period are matters for the RO to decide in the first instance. ORDER Entitlement to application of 38 C.F.R. § 4.71a, Diagnostic Code 5055 is granted, subject to the regulations pertaining to the provision of monetary benefits. REMAND In the prior section, the Board determined that the Veteran's left total knee arthroplasty was related to his service connected left knee disability, thereby entitling him to application of Diagnostic Code 5055. As explained previously, that code provides for assignment of a schedular 100 percent evaluation for a period of time, following by assignment of a rating for the residual disability. The RO limited its consideration in this case to 38 C.F.R. § 4.30, and did not interpret the claim to involve an increased rating. As explained in the Introduction, the Board finds that the RO did not identify the actual issue properly. The issue on appeal involves an increased rating. Given this, and in light of the Board's decision that the left total knee replacement is part and parcel of the service-connected left knee disorder, the Board finds that remand is required in order for the RO to apply the provisions of Diagnostic Code 5055, and to assign a residual rating. The Board notes that the Veteran is currently in receipt of a separate 30 percent evaluation for limitation of left knee extension. This may very well be affected by application of Diagnostic Code 5055, and the RO will have to revisit the propriety of separate ratings now that the Veteran has undergone a total knee replacement. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should issue notice to the Veteran which complies with 38 U.S.C.A. § 5103 (West 2002 & Supp. 2013) as to increased ratings claims. 2. Thereafter, and following any indicated development, including VA examination if necessary, the RO/AMC should evaluate the Veteran's left knee disability under 38 C.F.R. § 4.71a, Diagnostic Code 5055, including with respect to assigning a 100 percent schedular evaluation and determining the appropriate disability rating effective the end of that schedular 100 percent evaluation. 3. The RO/AMC should then prepare a new rating decision and readjudicate the issue of entitlement to an increased rating for left knee disability. If the benefit sought on appeal is not granted in full the RO/AMC must issue a supplemental statement of the case, which should include the pertinent law and regulations pertaining to increased rating claims, and provide the appellant and his representative an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO/AMC. The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO/AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs