Citation Nr: 1340002 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-01 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 40 percent prior to March 15, 2012, and in excess of 60 percent since March 15, 2012, for residuals of a fracture of the remedial femoral condyle of the left knee, status post total knee arthroplasty with loosening of the femoral prosthetic component. 2. Entitlement to a rating in excess of 30 percent prior to March 15, 2012, and in excess of 60 percent since March 15, 2012, for total right knee arthroplasty with focal bone loss in the medial aspect of the right patellar articular surface. 3. Entitlement to a rating in excess of 20 percent for degenerative changes in the right knee. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to September 1978 and from August 1979 to March 1989. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Jackson, Mississippi. [Due to the location of the Veteran's residence, jurisdiction of his appeal remains with the RO in Louisville, Kentucky.] In January 2012, the Board in part remanded the appeal to the RO via the Appeals Management Center (AMC) to obtain outstanding VA medical records and afford the Veteran a VA examination to determine the nature and extent of his disabilities. The AMC obtained the VA medical records and afforded him an examination in March 2012, the report of which reflects substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). In a September 2012 rating decision, the RO increased the ratings for disabilities associated with left and right knee replacement to 60 percent effective March 15, 2012. As those increases do not represent the maximum ratings available for the entirety of the appeal period, the issues remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. The Veteran is in receipt of the maximum 60 percent rating for each knee disability from March 15, 2012. 2. The rating under Diagnostic Code 5055 for total right knee arthroplasty with focal bone loss in the medial aspect of the right patellar articular surface contemplates painful range of motion. 3. Prior to March 15, 2012, residuals of a fracture of the remedial femoral condyle of the left knee, status post total knee arthroplasty with loosening of the femoral prosthetic component, had been manifested by chronic residuals consisting of severe painful motion in the affected extremity. 4. Prior to March 15, 2012, total right knee arthroplasty with focal bone loss in the medial aspect of the right patellar articular surface had been manifested by chronic residuals consisting of severe painful motion in the affected extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent since March 15, 2012, for residuals of a fracture of the remedial femoral condyle of the left knee, status post total knee arthroplasty with loosening of the femoral prosthetic component, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.25, 4.68, 4.71a, Diagnostic Codes 5055, 5162, 5163, 5164 (2013). 2. The criteria for a rating in excess of 60 percent since March 15, 2012, for total right knee arthroplasty with focal bone loss in the medial aspect of the right patellar articular surface have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.25, 4.68, 4.71a, Diagnostic Codes 5055, 5162, 5163, 5164 (2013). 3. The criteria for a rating in excess of 20 percent for degenerative changes in the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.14, 4.25, 4.68, 4.71a, Diagnostic Codes 5010, 5055 (2013). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for a 60 percent rating, but no higher, for residuals of a fracture of the remedial femoral condyle of the left knee, status post total knee arthroplasty with loosening of the femoral prosthetic component for the period prior to March 15, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.68, 4.71a, Diagnostic Codes 5055, 5162, 5163, 5164 (2013). 5. Resolving reasonable doubt in the Veteran's favor, the criteria for a 60 percent rating, but no higher, for total right knee arthroplasty with focal bone loss in the medial aspect of the right patellar articular surface for the period prior to March 15, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.68, 4.71a, Diagnostic Codes 5055, 5162, 5163, 5164 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the duty to notify requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was notified in a June 2006 letter of the criteria for establishing an increased rating, the evidence required in that regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates. That letter addressed all notice elements and predated the initial adjudication by the RO in January 2007. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in obtaining service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, and post-service reports of VA treatment and examination. The Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. VA also provided the Veteran with examinations in July 2006 and June 2009 to determine the nature and severity of his knee disabilities. When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Noting the assertion of the Veteran's representative that the June 2009 examination was inadequate and the contention of the Veteran that his disabilities had worsened since that time, the Board requested another examination, which was provided in March 2012. The Board finds that examination report to be thorough and adequate upon which to base a decision on the claims. The examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to evaluate the disabilities under the applicable rating criteria. The Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). The Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). But see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 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). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. In this case, VA received the Veteran's claims for increased ratings for his left and right knee disabilities on May 31, 2006. The Veteran's left knee disability has been evaluated under Diagnostic Code 5055 for knee replacement (prosthesis). 38 C.F.R. § 4.71a (2013). It has been rated as 40 percent prior to March 15, 2012, and 60 percent since March 15, 2012. His right knee disability has been rated under Diagnostic Code 5055 for knee replacement and Diagnostic Code 5010 for degenerative changes. 38 C.F.R. § 4.71a (2013). Disability associated with the knee replacement has been rated as 30 percent prior to March 15, 2012, and 60 percent since March 15, 2012. Disability associated with degenerative changes has been rated as 20 percent since May 31, 2006. Under Diagnostic Code 5055, prosthetic replacement of a knee joint for 1 year following implantation of prosthesis warrants a 100 percent rating; with chronic residuals consisting of severe painful motion or weakness in the affected extremity warrants a 60 percent rating; with intermediate degrees of residual weakness, pain, or limitation of motion being rated by analogy to diagnostic code 5256, 5261, or 5262; and a minimum rating of 30 percent. Under Diagnostic Code 5256 for ankylosis of the knee, extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a maximum 60 percent rating, ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent rating, and ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent rating. 38 C.F.R. § 4.71a (2013). Under Diagnostic Code 5261 for limitation of leg extension, a maximum 50 percent rating requires limitation of extension to 45 degrees and a 40 percent rating requires limitation of extension to 30 degrees. 38 C.F.R. § 4.71a (2013). Under Diagnostic Code 5262, nonunion of the tibia and fibula with loose motion requiring a brace warrants a maximum 40 percent rating. 38 C.F.R. § 4.71a (2013). For VA purposes, normal extension and flexion of the knee is from 0 to 140 degrees. Plate II, 38 C.F.R. § 4.71 (2013). Initially, the Board observes that Diagnostic Code 5055 does not provide for a rating in excess of 60 percent after the one-year period following implantation of the prosthesis during which a 100 percent rating is assigned. A higher rating is not warranted because such a rating would exceed the maximum 60 percent allowable under the "amputation rule." See 38 C.F.R. §§ 4.25, 4.68, 4.71a, Diagnostic Codes 5162, 5163, 5164 (providing that amputation at the middle or lower thirds of the thigh, amputation of the leg with defective stump, and amputation not improvable by a prosthesis controlled by natural knee action all warrant a 60 percent rating) (2013). The "amputation rule" provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, where amputation is performed. 38 C.F.R. § 4.68 (2013). In this case, the Veteran is in receipt of the maximum 60 percent rating for each knee disability from March 15, 2012. Thus, a rating in excess of 60 percent for either knee is not warranted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Thus, those aspects of the appeal are denied. A similar outcome results with respect to degenerative changes in the right knee. Service connection for degenerative changes of the right knee was granted by the RO in a March 2004 rating decision and assigned a 10 percent rating under Diagnostic Code 5010 for arthritis, effective September 22, 2003. Service connection for a patella fracture of the right knee had already been in effect and rated as 20 percent under Diagnostic Code 5257 for recurrent subluxation or lateral instability. In an April 2005 rating decision, noting that the knee had been replaced, the RO recharacterized that disability as total right knee arthroplasty and rated it as 100 percent effective October 22, 2004, then as 30 percent effective December 1, 2005, under Diagnostic Code 5055. The rating under Diagnostic Code 5055 for total right knee arthroplasty with focal bone loss in the medial aspect of the right patellar articular surface contemplates painful range of motion. Thus, a separate rating for arthritis under Diagnostic Code 5010 would appear to compensate the same symptoms under two different diagnostic codes. 38 C.F.R. § 4.14 (2013). Diagnostic Code 5055 even specifies that intermediate degrees of residual weakness, pain, or limitation of motion following prosthetic replacement are to be rated under Diagnostic Code 5256, 5261, or 5262. However, in the January 2007 rating decision, the RO not only continued the rating but increased it to 20 percent effective May 31, 2006, and the Veteran perfected an appeal for an even higher rating. Given the regulation against "pyramiding," and the "amputation rule" noted earlier, the Board finds that a rating in excess of 20 percent for degenerative changes in the right knee is not warranted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Thus, that aspect of the appeal is also denied. Thus, the remaining questions are whether higher ratings are warranted for the Veteran's left and right total knee replacements prior to March 15, 2012. Historically, the Veteran underwent right total knee arthroplasty (replacement) in November 1999 and left total knee replacement in November 2004. In May 2005, he complained of minimal discomfort in his knees. In August 2005, he complained of bilateral knee pain that was improved but still occurring on a daily basis and reported being able to walk up to one mile. In November 2005, he reported "doing well." During a January 2006 VA examination for the right knee, he complained of occasional pain but no weakness. VA medical records from May 2006 to March 2012 continue to show complaints of chronic bilateral knee pain. Of note, in January 2009, he complained of pain in both knees radiating into the feet. In October 2010, he complained of intermittent pain that is sometimes shooting in nature, awakening him at night, and bothering him significantly. From May to December 2010, he complained of persistent burning pain in the left knee that was 7/10 in severity. In March 2011, he complained of constant left knee pain that was 4/10 in severity. During a July 2006 VA examination, he complained of chronic pain and weakness in his knees and reported being able to walk one quarter mile. Examination found range of motion from 0 to 75 degrees bilaterally with no additional limitation of motion on repetitive use. The examiner noted that there was painful movement in the right knee, but did not comment on the left knee, and there was mild weakness in both knees. The examiner commented that pain was the major functional limitation, noting that the Veteran has constant pain. The examiner indicated that the Veteran's disabilities would have significant effects on occupation via decreased mobility and has resulted in being assigned different duties. The examiner also indicated that the disabilities would have moderate effects on the Veteran's ability to do chores, shopping, recreation, and travelling, and prevented exercise and sports. During a June 2009 VA examination, he complained of pain but no weakness in his knees and reported being able to walk one quarter mile. Examination found range of motion from 5 to 90 degrees in the left knee and 0 to 85 degrees in the right knee with no objective evidence of pain in either knee and no additional limitation of motion following repetition. There was no weakness in either knee. The Veteran reported working full-time and losing three weeks during the last year due to knee pain. The examiner diagnosed the Veteran with total knee arthroplasty with persistent painful limitation of motion in the right knee and painful limitation of motion in the left knee. The examiner indicated that the Veteran's disabilities would have significant effects on occupation via decreased mobility and has resulted in increased absenteeism. The examiner also indicated that the disabilities would have mild effects on chores, shopping, and travelling; moderate effects on exercise and recreation; and prevented sports. The examiner commented that the Veteran would be unable to do work that requires prolonged standing or walking or heavy lifting or climbing stairs, but should be able to perform sedentary desk work. During a March 2012 VA examination, he complained of constant daily knee pain. Examination found range of motion from 0 to 130 degrees in the left knee and 0 to 120 degrees in the right knee with no objective evidence of painful motion in either knee. He was unable to perform repetitive testing due to stiffness. The examiner indicated that the Veteran would have functional loss or impairment or additional limitation of range of motion after repetitive use due to less movement than normal, weakened movement, excess fatigability, and pain on movement. Muscle strength was 2/5 bilaterally. Specific to total knee joint replacement, the examiner indicated that the Veteran has chronic residuals consisting of severe painful motion or weakness in both knees. The examiner indicated that the Veteran's disabilities impact his ability to work as he cannot engage in prolonged walking or standing. Given the above, prior to March 15, 2012, the Veteran's left and right total knee replacement disabilities clearly had been manifested by painful motion. The remaining question is whether that painful motion was severe. VA medical records describe the pain as radiating, shooting in nature, awakening him at night, and bothering him significantly. Left knee pain was 7/10 and 4/10. The July 2006 examiner noted that there was painful movement in the right knee, that pain was the major functional limitation, that the pain was constant, and that the Veteran's disabilities would have significant effects on occupation. The June 2009 examiner noted no objective evidence of pain during range of motion testing but diagnosed the Veteran with total knee arthroplasty with painful limitation of motion in both knees, and indicated that the disabilities would have significant effects on his occupation. The March 2012 examiner also noted that the Veteran was unable to perform repetitive testing due to stiffness in the knees and indicated that the disabilities would result in less movement than normal, weakened movement, and pain on movement. The examiner also provided the only opinion specific to total knee joint replacement, indicating that the Veteran has chronic residuals consisting of severe painful motion or weakness in both knees. The Board notes that the last examination was conducted on March 15, 2012. However, the findings and opinions still provide insight into the severity of the Veteran's disabilities during the time period in question. Resolving reasonable doubt in the Veteran's favor, the Board finds that, prior to March 15, 2012, his left and right total knee arthroplasty each had been manifested by chronic residuals consisting of severe painful motion in the affected extremity. Thus, a 60 percent rating for each knee disability is warranted under Diagnostic Code 5055. As discussed earlier, an even higher rating is not warranted due to the "amputation rule." In conclusion, the Board has applied the benefit-of-the-doubt doctrine in granting a 60 percent rating for residuals of a fracture of the remedial femoral condyle of the left knee, status post total knee arthroplasty with loosening of the femoral prosthetic component, and a 60 percent rating for total right knee arthroplasty with focal bone loss in the medial aspect of the right patellar articular surface, both prior to March 15, 2012. However, as the preponderance of the evidence is against even higher ratings and the claims for higher ratings since March 15, 2012, and the claim for a higher rating for degenerative changes in the right knee, the benefit-of-the-doubt doctrine is not applicable to those aspects of the appeal. See 38 U.S.C.A. § 5107 (West 2002 & Supp. 2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additional Considerations The Board must determine whether the schedular evaluation is inadequate, thus requiring a referral of the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2013); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluations are adequate. Indeed, the Veteran has been assigned the maximum ratings available under the appropriate rating criteria, and the diagnostic criteria adequately describe the severity and symptomatology of his disorders. As the rating schedule is adequate to evaluate the disabilities, referral for extra-schedular consideration is not in order. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, due to his service-connected knee disabilities. The record shows that he is working full-time. Thus, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A rating in excess of 60 percent since March 15, 2012, for residuals of a fracture of the remedial femoral condyle of the left knee, status post total knee arthroplasty with loosening of the femoral prosthetic component, is denied. A rating in excess of 60 percent since March 15, 2012, for total right knee arthroplasty with focal bone loss in the medial aspect of the right patellar articular surface is denied. A rating in excess of 20 percent for degenerative changes in the right knee is denied. A 60 percent rating prior to March 15, 2012, for residuals of a fracture of the remedial femoral condyle of the left knee, status post total knee arthroplasty with loosening of the femoral prosthetic component, is granted, subject to the provisions governing the award of monetary benefits. A 60 percent rating prior March 15, 2012, for total right knee arthroplasty with focal bone loss in the medial aspect of the right patellar articular surface, is granted subject to the provisions governing the award of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs