Citation Nr: 1502128 Decision Date: 01/15/15 Archive Date: 01/27/15 DOCKET NO. 12-27 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an extension beyond October 1, 2012, of a 100 percent evaluation for a right total knee replacement. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from March 1976 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that granted a temporary total evaluation for the Veteran's service-connected right knee disability based upon the need for convalescence following a right knee replacement from August 29, 2011, to October 1, 2011, granted a subsequent 100 percent rating until October 1, 2012, pursuant to Diagnostic Code 5055, and then a 30 percent rating thereafter. FINDINGS OF FACT 1. On August 29, 2011, the Veteran underwent a total right knee arthroplasty. On December 8, 2011, due to ongoing pain, swelling, and severely restricted limitation of motion of the knee, the Veteran underwent surgery revision to the tibial component of the knee replacement. 2. Resolving the benefit of the doubt in favor of the Veteran, the December 8, 2011, surgical revision is considered to be a continuation of the August 29, 2011, total right knee arthroplasty; therefore, the 100 percent rating should be extended to February 1, 2013. CONCLUSION OF LAW The criteria for an extension of the 100 percent rating for a total right knee arthoplasty until February 1, 2013, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.30, 4.71a, Diagnostic Code 5055 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION First, as the Board's decision to continue the Veteran's 100 percent rating for a right total knee arthroplasty to February 1, 2013, is a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Veteran essentially contends that the he underwent two right knee replacements, the first in August 29, 2011, and the second in December 8, 2011, and thus he should be granted a 100 percent rating for a right knee replacement beginning following the second surgery in December 2011 in accordance with 38 C.F.R. § 4.30 and 38 C.F.R. § 4.71a, Diagnostic Code 5055. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. §§ 4.15, 4.16(b) (2014). In the case of disability which is temporary in nature, such as that period of convalescence following surgery, governing regulation provides for temporary total disability ratings during convalescence. 38 C.F.R. § 4.30 (2014). Temporary total ratings will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) Surgery (including outpatient surgery after March 1, 1989) necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a) (2014). Temporary total disability ratings are to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release. See 38 C.F.R. § 4.30 (2014). Extensions of one to three months, beyond the initial three months, may be made under 38 C.F.R. § 4.30(a) (1), (2), or (3). Extensions of one or more months up to six months beyond the initial six months period may be made only under 38 C.F.R. § 4.30(a)(2) or (3) upon the approval of the Adjudication Officer. 38 C.F.R. § 4.30(b) (2014). Diagnostic Code (DC) 5055 provides a temporary total rating for one year following surgical implantation of a prosthetic knee joint. 38 C.F.R. § 4.71a (2014). 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. 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). The minimum evaluation under DC 5055 is 30 percent. Note (1): directs that the 100 percent rating for one year following implantation of the prosthesis will commence after initial grant of the 1-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. The evidence of record reflects that on August 29, 2011, the Veteran underwent a right knee total arthroplasty. He was granted a 100 percent temporary total rating beginning August 29, 2011, until October 1, 2011, and then a 100 percent rating for one year, until October 1, 2012, pursuant to DC 5055. Since then, he has been in receipt of a 30 percent rating for his right knee disability. Turning to the evidence of record, treatment records following the first knee surgery conducted in August 2011 reflect that the Veteran experienced stiffness and a decrease in range of motion, with flexion only reaching 60 degrees. In October 2011, he underwent manipulation of the knee joint under anesthesia in order to gain greater flexion. In November 2011, he was still experiencing knee pain and there was no improvement with flexion. Extension of the knee was additionally limited to 15 degrees. On December 8, 2011, he underwent surgical revision of the knee joint replacement to one component. Two months later, he was still limping and experiencing pain. At that time, flexion of the knee was stuck in a 90 degrees position. Therefore, in February 2012, he again underwent manipulation of the right knee under anesthesia, with little improvement. A June 2013 VA examination showed some greater range of motion, with flexion of the knee ranging from 15-80 degrees. In this case, the Board is in agreement with the Veteran's contention that the December 2011surgical revision of the right knee replacement is akin to a continuation of the August 2011 right knee replacement, or should be considered as a "second" right knee replacement. In that regard, the December 2011 surgery focused on revising the total knee replacement and included replacing part of the hardware of the knee replacement. The surgery addressed the Veteran's ongoing discomfort, pain, and severe limitation of motion of the right knee as due to the first surgery. Thus, the Board finds that the December 8, 2011 surgery was, in essence, part of the Veteran's total knee replacement and therefore the rating criteria that contemplates prosthesis applies beginning from that date. Accordingly, under the rating criteria, a 100 percent rating pursuant to 38 C.F.R. § 4.30 is warranted from the date of surgical discharge, December 8, 2011, plus one month beginning from the first day of the month following such discharge. In this case, the period of convalescence would extend until the end of January 2012. Then, according to DC 5055, following a one month period of convalescence, a 100 percent rating is assigned for the period of one year, or, in this case, from February 1, 2012, until February 1, 2013. Accordingly, the Veteran's request that his 100 percent rating be extended past the current date of October 1, 2012, is granted. ORDER Entitlement to an extension of a 100 percent rating for a right knee total arthroplasty to February 1, 2013, is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs