Citation Nr: 1442467 Decision Date: 09/23/14 Archive Date: 09/30/14 DOCKET NO. 11-28 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for residuals of a right knee unicompartmental replacement arthroplasty, currently rated 20 percent . 2. Entitlement to an extension of a temporary total rating following unicompartmental replacement arthroplasty of the right knee beyond February 28, 2009. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The Veteran had active service from August 1975 to July 1976; May 1980 to October 1992; June 1997 to September 1997; October 1997 to September 1998; October 1998 to September 1999; and from October 1999 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) that granted a temporary total rating for degenerative osteoarthritis of the right knee, status post arthroscopy, from December 17, 2008 to February 28, 2009, under 38 C.F.R. § 4.29, and a 20 percent rating from March 1, 2009. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2014. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran underwent a partial right knee replacement on December 17, 2008, entitling him to a 100 percent disability rating for one year from the date of implantation of the prosthesis. 2. Beginning February 1, 2010, the Veteran's right knee disability has been manifested by relatively full range of motion and minor pain; chronic residuals such as severe painful motion or weakness have not been clinically demonstrated. 3. The claim for an extension of a temporary total rating under 38 C.F.R. § 4.29 is moot. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating following a December 17, 2008, partial right knee replacement procedure, through January 31, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5055 (2013). 2. From February 1, 2010, the criteria for a 30 percent rating, but not higher, for residuals of a right knee unicompartmental replacement arthroplasty have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5256-63 (2013). 3. Extension of a temporary total rating for residuals of a right knee unicompartmental replacement arthroplasty is not warranted. 38 C.F.R. § 4.29 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the appellant was provided appropriate notice in letters dated in February 2009 and May 2009, prior to the rating decision on appeal. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim on appeal that includes the information necessary to rate the Veteran's disability relevant to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that VA has satisfied the duty to assist, and no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2013). The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two rating is to be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining should be resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3 (2013). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The evidence of record reflects that the Veteran underwent a partial right knee replacement, a unicompartmental knee arthroplasty, on December 17, 2008. The Veteran filed a claim for an increased rating later that month. In an August 2009 rating decision, the RO assigned a temporary 100 percent rating for convalescence under 38 C.F.R. § 4.29, effective December 17, 2008, and a 20 percent rating from March 1, 2009. The Veteran asserts that he is entitled to a 100 percent rating for a full one year after the surgical procedure in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5055. In the alternative, he has requested an extension of the temporary total rating pursuant to 38 C.F.R. § 4.29. The Board agrees with his initial assertion. However, by granting a 100 percent rating for the full one year period following his surgical procedure, further extension of a temporary total rating would violate both 38 C.F.R. § 4.14 and 38 C.F.R. § 4.29. Under Diagnostic Code 5055, the prosthetic replacement of a knee joint is to be rated 100 percent for one year following the implantation of the prosthesis. 38 C.F.R. § 4.71a (2013). Diagnostic Code 5055 does not differentiate between total and partial knee replacements, but applies to prosthetic replacement of a knee joint. 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. To the extent that the scope of the Diagnostic Code is ambiguous, that ambiguity must be resolved in the Veteran's favor. Brown v. Gardner, 513 U.S. 115 (1994); Kilpatrick v. Principi, 16 Vet. App. 1 (2002). Accordingly, the Board finds that Diagnostic Code 5055 applies to the Veteran's partial knee replacement and the assignment of a 100 percent rating from December 17, 2008, through January 31, 2010, is warranted. It follows that the Veteran is also entitled to a 30 percent rating, the minimal rating permitted following knee replacement, from February 1, 2010, the first of the month following 13 months from the date of the surgery, in accordance with Diagnostic Code 5055. The Board finds, however, that a rating in excess of 30 percent is not warranted at any time on or after February 1, 2010. Under Diagnostic Code 5055, following the 100 percent rating for one year, a 60 percent rating is warranted if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula). 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2013). The Veteran has not asserted, and the post-operative evidence does not demonstrate clinical findings compatible with chronic residuals consisting of severe painful motion or weakness in the affected extremity. For example, when seen on February 17, 2009, less than two months after the procedure, he was able to walk without gait aids or a limp and he had "essentially full motion" and a well-healed wound. Additionally there was excellent stability and alignment. A March 2009 VA clinic note indicated that his right knee pain was tolerable and he described it as a "2" on a scale from 1-10. On VA examination in August 2009, he was observed to have only a slight limp with no assistive devices. Strength testing to gravity and resistance was within normal limits. He was able to toe-walk and heel-walk, and he had good heel-to-toe coordination. Flexion was from 0 degrees to 80 degrees with some discomfort. Extension was full. Medial and lateral collateral ligaments and anterior and posterior cruciate ligaments showed no laxity. McMurray's and grind tests were negative. There was no instability, painful motion, tenderness, spasms, edema, or fatigability. Therefore, those ranges of motion are not representative of severe painful motion that would warrant a rating higher than 30 percent under Diagnostic Code 5055, or higher ratings under Diagnostic Codes 5260, 5261, or 5262. A separate rating under Diagnostic Code 5257 is also not warranted because the knee has been clinically described as stable. 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261, 5262 (2013). Finally, since the Veteran has been assigned a 100 percent rating for the full one year period following the placement of his prosthesis, the award of a separate extension of the temporary 100 percent under 38 C.F.R. § 4.29, would violate the anti-pyramiding regulation, and 38 C.F.R. § 4.29, which permits an extension of a convalescence rating for no more than six months. 38 C.F.R. §§ 4.14, 4.29 (2013). The Board also finds that the evidence does not show any marked interference with employment or frequent hospitalization on or after February 1, 2010, that would warrant referral for consideration of an extraschedular rating. The schedular rating criteria adequately describe the Veteran's disability and his disability picture is not shown to be extraordinary. 38 C.F.R. § 3.321(b)(1) (2013). Accordingly, the Board finds that a 100 percent disability rating from December 17, 2008, through January 31, 2010, for residuals of a right knee unicompartmental replacement arthroplasty, is warranted and a 30 percent rating, but not higher, is warranted from February 1, 2010. The preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A 100 percent rating from December 17, 2008, through January 31, 2010, for residuals of right knee unicompartmental replacement arthroplasty residuals of a right knee unicompartmental replacement arthroplasty, is granted. As of February 1, 2010, a 30 percent rating, but not higher, for residuals of a right knee unicompartmental replacement arthroplasty, is granted. Extension of a temporary total rating under 38 C.F.R. § 4.29, for residuals of a right knee unicompartmental replacement arthroplasty, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs