Citation Nr: 1333940 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-15 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 40 percent for total right knee replacement after December 1, 2008. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1970, including combat service in the Republic of Vietnam and his decorations include the Purple Heart and Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that assigned a 40 percent evaluation for total replacement (arthroplasty) of the right knee, effective December 1, 2008. By way of background, in a December 2007 rating decision, the RO assigned a temporary evaluation of 100 percent from October 26, 2007 to November 30, 2008 for the right knee post total replacement, with an evaluation of 30 percent effective December 1, 2008. Within one year of this determination, the Veteran did not express disagreement with the assigned disability evaluations, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(b); 20.201 (2013); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As such, the December 2007 rating action became final. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the evidence suggests that the Veteran may be unemployable due to symptoms of his service-connected disabilities, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT Since December 1, 2008, the Veteran's total right knee replacement has been productive of chronic residuals consisting of severe painful motion of the right knee. CONCLUSION OF LAW Effective December 1, 2008, the criteria for a rating of 60 percent for total right knee replacement have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5055 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's total right knee replacement is currently rated 40 percent disabling. He contends that for the entire appeal period his symptoms have been more severe than the currently assigned rating and that he is entitled to a higher rating. Prosthetic replacement of the knee joint is rated under DC 5055. Under that code, a 100 percent rating is warranted for one year following knee replacement surgery. The Veteran was awarded this rating from October 26, 2007 to November 30, 2008. Under DC 5055, subsequent to the 100 percent rating granted for one year following implantation of the prosthesis, a 30 percent evaluation is the minimum evaluation available. Chronic residuals consisting of severe painful motion or weakness in the affected extremity are rated as 60 percent disabling. 38 C.F.R. § 4.71a, DC 5055 (2013). Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DCs 5256, 5261, or 5262, which respectively pertain to ankylosis, limitation of extension, and impairment of the tibia and fibula. The maximum schedular evaluation available under these three analogous codes is 60 percent. The Board finds that the Veteran's total right knee replacement has produced chronic residuals consisting of severe painful motion in the affected extremity. The December 2009 VA examiner diagnosed "postoperative right total knee replacement with residual decreased range of motion and manifestations of chronic pain." In his April 2010 substantive appeal, the Veteran reported his right knee was still in extreme pain and discomfort. There is no evidence of record in conflict with this assessment. Therefore, a 60 percent disability evaluation is warranted throughout the appeal, i.e., effective December 1, 2008 (subsequent to the 100 percent rating granted for one year following implantation of the prosthesis). The Board notes that 60 percent is the maximum possible schedular evaluation available for a total knee replacement. There are no other DCs under which the Veteran might receive a higher evaluation. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The United States Court of Appeals for Veterans Claims has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's total right knee replacement is characterized by chronic residuals consisting of severe painful motion in the affected extremity. These manifestations are contemplated in the applicable rating criteria. The Board has carefully compared the level of severity and symptomatology of the Veteran's total right knee replacement with the criteria found in the rating schedule. In sum, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his descriptions of total right knee replacement symptoms are consistent with the degree of disability addressed by such evaluation. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. ORDER Effective December 1, 2008, a 60 percent rating for total right knee replacement is granted, subject to the law and regulations governing payment of monetary benefits. REMAND Service connection is in effect for PTSD and major depression (50 percent), total right knee replacement (60 percent), bursitis of the left hip (10 percent), bursitis of the right hip (10 percent), and scars (noncompensable), with a combined disability rating of 80 percent. Therefore, the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) have been met. In an October 2011 submission, the Veteran reported that his psychiatric disability had increased in severity, which the Board interprets as an informal claim for a higher rating for his for his PTSD, which is currently evaluated as 50 percent disabling. In addition, the Veteran indicated that he had been forced into early retirement due to his service-connected disabilities. The record shows that the Veteran is not working and the evidence suggests that he may be unemployable due to his service-connected PTSD, total right knee replacement, and/or right and left hip bursitis, to include the combined impact of these conditions. The Board thus finds that a remand is necessary to afford the Veteran a VA examination so as to ascertain whether these service-connected disabilities render him unemployable. Moreover, the Veteran's claim for TDIU is inextricably intertwined with his pending psychiatric disability claim. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran and his representative a letter addressing VA's duty to notify as to his psychiatric disability and TDIU claims. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his service-connected disabilities and the impact of the conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. The Veteran should be afforded a VA psychiatric examination to determine the extent and severity of his PTSD. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. The examiner should report all pertinent findings and estimate the veteran's Global Assessment of Functional (GAF) Scale score. The examiner should set forth a complete rationale for all findings and conclusions in a legible report. 4. Schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities (PTSD with major depression, total right knee replacement, bursitis of the left and right hips, and scars), either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. The examiner should take into consideration the Veteran's level of education, special training, and previous work experience. The examiner should describe what type of employment activities would be limited by his service-connected disabilities. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 4. Then readjudicate the claim for TDIU. If the claim remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs