Citation Nr: 1334338 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-29 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a rating in excess of 30 percent for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his Wife, and M.L. ATTORNEY FOR THE BOARD C. E. de Jong, Associate Counsel INTRODUCTION The Veteran (appellant) served on active duty from January 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the RO in New Orleans, Louisiana, which denied a rating in excess of 30 percent for the Veteran's service-connected left knee disability. The Veteran testified before the undersigned at a September 2013 hearing at the RO. A transcript has been associated with the file. At that time, the Veteran submitted new evidence and waived initial consideration of that evidence by the RO. The Board will proceed to consider the case. 38 C.F.R. § 20.1304 (2013). Two issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The first issue referred to the AOJ is whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a bilateral hip disability secondary to the Veteran's service-connected left knee arthritis, status post total knee replacement. The Veteran has presented evidence in the form of testimony and VA treatment records that his current hip disability is secondary to his service-connected left knee disability. The second issue referred to the AOJ is whether the Veteran is entitled to a separate disability rating for the shortening of his left leg following his total left knee replacement. The Veteran testified that his left leg is 2 1/4 inches shorter than his right leg as a result of his total knee replacement for his service-connected left knee disability, and has submitted VA treatment records showing he was fitted with a lift for his left shoe due to his left leg shortening. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" and VBMS systems to insure a total review of the evidence. 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 The Veteran's service-connected left knee arthritis, status post total knee replacement, has been manifested by chronic residuals consisting of weakness in the affected extremity. CONCLUSION OF LAW The criteria for a disability rating of 60 percent for left knee arthritis, status post total knee replacement, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating The Veteran contends that he is entitled to a rating in excess of 30 percent for his service-connected left knee arthritis, status post total knee replacement (left knee disability), because he continues to experience chronic residuals of the total knee replacement he underwent in April 2010. The Board notes that the Veteran's left knee disability was temporarily rated at 100 percent from April 2010 to June 2011, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055. Beginning in July 2011, he was assigned a 30 percent rating for his left knee disability. For the reasons that follow, the Board finds that a rating of 60 percent is warranted for the Veteran's left knee disability. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). The Veteran's left knee disability is rated under Diagnostic Code (DC) 5055, which provides a temporary total rating for one year following surgical implantation of a prosthetic knee joint. 38 C.F.R. § 4.71a (2009). Thereafter, DC 5055 provides for a 60 percent rating when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. When there are intermediate degrees of residual weakness, pain, or limitation of motion, the knee is rated by analogy using diagnostic codes 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula). Id. The minimum evaluation under DC 5055 is 30 percent. Id. The Veteran was afforded a VA examination in February 2012. On examination, the Veteran reported that daily flare-ups impacted the functioning of his left knee. He had flexion to 110 degrees, with painful motion at 90 degrees, and extension to 10 degrees, with painful motion also at 10 degrees. The examiner noted that the Veteran was able to perform repetitive-use testing, but had additional limitation in his left knee range of motion and additional functional impairment after repetitive use. This impairment was manifested by less movement than normal, weakened movement, pain on movement, and atrophy of disuse. The Veteran was found to have pain on left knee palpation, reduced muscle strength on flexion and extension, and anterior instability of the left knee. The examiner noted the residuals of the Veteran's 2010 total knee replacement as pain and wearing a left knee brace, and also noted a May 2011 X-ray indicating the Veteran's prosthetic was not loosening, but that the Veteran had reported increasing pain in the left knee, tibia and femur at that time. The examiner noted that the Veteran constantly wore his knee brace, constantly used a cane, and occasionally used a walker for assistance. The Veteran submitted a September 2012 statement from his treating VA doctor, Dr. C.G. In her statement, Dr. C.G. reported that the Veteran had residual left quadriceps weakness as a result of his total knee replacement. She stated that this weakness had caused the Veteran to fall on several occasions, even with the assistance of two canes. Dr. C.G. explained that quadriceps muscle strength is important as it allows the knee to extend while walking, and that the Veteran's muscle weakness has caused his left knee to "buckle," which led to the Veteran falling. Dr. C.G. also indicated that the Veteran had pain with range of motion on her examination. The Veteran also submitted a September 2013 treatment note from Dr. C.G. In this record, Dr. C.G. noted that the Veteran's left knee pain and medial tibia pain had increased since his total knee replacement. She further noted that the Veteran constantly wore a knee sleeve, and constantly took Tylenol and applied menthol cream to relieve his left knee pain. Dr. C.G. also noted that the Veteran had received a custom insert for his left shoe to counter the left leg shortening that had resulted from his total knee replacement. At the Veteran's September 2013 hearing, he reported his left knee pain as "10 out of 10." He also reported that his left leg was shorter than his right as a result of his total knee replacement, and that he wore a lift in his left shoe to compensate for the discrepancy in length. The Veteran stated that he was unable to lift his left leg to put on his sock and shoe with the lift. The Veteran also reported having spasms in his left knee, and daily flare-ups manifested by shooting pains. The Veteran stated that after his total knee replacement, he was unable to do household chores and was only able to walk as far as the bathroom from his chair. He also indicated that prior to his total knee replacement, he had a taxidermy shop in which he worked and trained young people interested in the trade. He reported that due to the worsening of his left knee disability after his total knee replacement, he was not able to work in his taxidermy shop after the surgery. The Veteran's son, M.L., also testified at the September 2013 hearing, and reported his observations on changes in the Veteran's activities and behavior following his total knee replacement. M.L. indicated that the Veteran and his family members had expected the surgery to improve the Veteran's left knee disability, but that it had in fact made the disability worse. M.L. reported that the Veteran actively engaged in physical therapy during his recovery period, but that he became increasingly dependent on his crutch and his chair, and increasingly prone to falls. M.L. testified that the Veteran was not able to sleep well, get in and out of a chair, or walk down the block to M.L.'s house due to his severe left knee pain. He reported that the Veteran was unable to stand up for more than a few minutes, and that after the Veteran's total knee replacement he was no longer able to engage in activities such as going for rides in M.L.'s truck and working in his taxidermy shop. M.L. also reported that the Veteran's agitation due to his knee pain and his frustration due to his inability to perform routine daily activities had negatively affected his interpersonal relationships. Based on the above evidence, the Board finds that the Veteran has chronic residuals of his total knee replacement consisting of weakness in the affected extremity and that a 60 percent rating for the Veteran's left knee disability is warranted. The Veteran's February 2012 VA examination findings show that he was experiencing significant and constant residuals of his total knee replacement nearly two years after the surgery. The examination findings also note that the Veteran's functional impairment was manifested by weakened movement and atrophy of disuse, among other objective indications. The Veteran's measurements of muscle strength on examination were also reduced for both flexion and extension of the left knee. The Board finds that these VA examination findings constitute competent and credible evidence of the Veteran's chronic residuals of his total knee replacement manifested by weakness in and around the left knee. The September 2012 letter from Dr. C.G. specifically notes the Veteran's weakness in his left quadriceps as a residual of his total knee replacement. Dr. C.G. clearly explains the impact of this muscle weakness on the Veteran's ability to walk and how it creates a tendency for the Veteran to fall as a result of his left knee giving out. The Board finds that Dr. C.G.'s letter to be thoughtful, well-reasoned, and credible. The Board further finds that Dr. C.G.'s letter is entitled to significant probative weight, as Dr. C.G. has treated the Veteran since 2006 and has provided her observations of the Veteran's left knee disability both before and after his 2010 total knee replacement. The testimony of the Veteran and his son, M.L., at the September 2013 hearing also constitutes competent and credible evidence of the Veteran's chronic residuals of his total knee replacement. The Veteran testified as to his inability to raise his left leg to put on his sock and shoe among the many other residuals of his surgery, and M.L. testified as to the Veteran's tendency to fall as a result of his left leg weakness. As laypersons, the Veteran and M.L. are both competent to report their personal experiences and their observations of the residuals of the Veteran's total knee replacement. The Board further finds their testimony to be credible and entitled to significant probative weight. The Veteran is the person most able to accurately report the symptoms and restrictions on daily activities that he has experienced since his total knee replacement. The Veteran's son is clearly very close to the Veteran and interacts with him on a daily basis, and as such his observations of changes in the Veteran's behavior and activities after his surgery are highly probative. Competent and credible evidence of high probative value shows that the Veteran has chronic residuals of his total knee replacement consisting of weakness in the affected extremity. Therefore, a 60 percent rating for the Veteran's left knee disability under DC 5055 is warranted. 38 C.F.R. § 4.71a, DC 5055. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the possibility of staged ratings. The Board, however, concludes that the criteria for a rating in excess of 60 percent have at no time been met. Accordingly, staged ratings are inapplicable. See id. The principal avenue for a rating in excess of a schedular maximum is an extraschedular rating. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The schedular evaluation for the Veteran's left knee disability is not inadequate. The Veteran has reported pain, weakness, limitation of motion, instability, wearing a knee brace, and using a cane. These are the complaints anticipated by the ratings schedule. The Veteran merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for his service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. The Board has considered and applied the benefit-of-the-doubt rule. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Duties to Notify and Assist The Veteran's claim of entitlement to a rating in excess of 30 percent for left knee arthritis, status post total knee replacement, has been granted, and the 60 percent rating now assigned is the highest schedular rating available for any knee disorder (other than the total rating assigned for the year following knee replacement surgery). The Veteran was notified in a November 2011 letter of the evidence needed to substantiate his claim for a higher rating, and identified private and VA medical records have been obtained. An adequate VA examination was provided in 2012, and the Veteran also had the opportunity to testify before the undersigned at a hearing held at the RO. Therefore, all notice and assistance obligations were satisfied here. ORDER Entitlement to a rating of 60 percent for left knee arthritis, status post total knee replacement, is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs