Citation Nr: 1608958 Decision Date: 03/07/16 Archive Date: 03/15/16 DOCKET NO. 10-29-120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for residuals of a right knee arthroplasty, rated 30 percent from July 1, 2009, and 60 percent from March 12, 2014. 2. Entitlement to a disability rating higher than 30 percent for residuals of a gunshot wound of the right knee involving instability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The Veteran had active service from December 1967 to March 1971. He received the Purple Heart Medal, Combat Infantryman Badge and Bronze Star Medal with "V" device, among other decorations. The Board thanks him for his outstanding service. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), located in Pittsburgh, Pennsylvania. The procedural history is complex and warrants some discussion. The Veteran had been in receipt of a 30 percent rating for residuals of a gunshot wound of the right knee involving instability since March 13, 1971. In December 2008, the RO established a separate rating for right knee arthroplasty - assigning a 100 percent temporary rating for convalescence following the knee replacement from May 13, 2008 to June 30, 2008; a 100 percent rating from July 1, 2008 to June 30, 2009; and a 30 percent rating from July 1, 2009. In August 2009, the Veteran expressed disagreement with "the VA when they lowered my temporary rating of 100% to 60%." In December 2009, the RO proposed to "discontinue" the separate 30 percent rating for instability. In March 2010, the RO issued a rating decision that "severed" service connection for "gunshot wound, right knee," effective July 1, 2010. In the statement of the case issued in May 2010, the RO styled the issue as "entitlement to a temporary total evaluation because of treatment for a service connected condition requiring convalescence." In the supplemental statement of the case issued in November 2012, it referred to the issue as "evaluation, right knee arthroplasty, currently evaluated as 30 percent disabling form July 1, 2009." The Veteran provided testimony at a March 2013 hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the claims folder. At the hearing, the issue was characterized as the proper evaluation for the right knee disability, evaluated as 100 percent prior to July 1, 2009, and 30 percent since that date. In December 2013, the Board restored the separate 30 percent rating for the Veteran's residuals of a gunshot wound of the right knee involving instability. The Board also granted a total rating based on individual unemployability (TDIU), effective July 1, 2009. The Board then remanded the issues of (1) entitlement to a disability rating higher than 30 percent for residuals of a right knee arthroplasty from July 1, 2009; and (2) entitlement to a disability rating higher than 30 percent for residuals of a gunshot wound of the right knee involving instability. Following development pursuant to the Board's remand instructions, the RO granted an increased rating from 30 to 60 percent for the Veteran's right knee arthroplasty. But since the RO assigned the 60 percent rating from March 12, 2014, rather than back to July 1, 2009, the issue on appeal is entitlement to an increased rating for residuals of a right knee arthroplasty, rated 30 percent from July 1, 2009, and 60 percent from March 12, 2014. FINDINGS OF FACT 1. Since July 1, 2009, the Veteran's disability due to right knee arthroplasty has been manifested by chronic residuals involving severe weakness. 2. By virtue of this decision, the Veteran's right knee disability has been assigned a 60 percent rating, which is the maximum rating allowed for a single knee. CONCLUSIONS OF LAW 1. The criteria for 60 percent rating have been met for a right knee arthroplasty since July 1, 2009. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2015). 2. The criteria for a disability rating higher than 30 percent for residuals of a gunshot wound of the right knee involving instability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5162, 5257 (2015). 3. The amputation rule precludes a disability rating higher than 60 percent for the Veteran's right knee under any Diagnostic Code. 38 C.F.R. § 4.68, §4.71a, Diagnostic Code 5162 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act Prior to considering the merits of the claim, the Board notes that VA has certain notice and assistance obligations toward the Veteran. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R § 3.159 (2015). Proper notice must inform the claimant of any information and 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); 38 C.F.R. § 3.159(b)(1). In a claim for increase VA must issue a generic notice that informs the Veteran of 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, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The record shows that the Veteran was provided with 38 U.S.C.A. § 5103(a)-compliant notice in October 2010. The record also shows that the Veteran has received the notice to which he is entitled under 38 U.S.C.A. §§ 5103A and 7104 (West 2014). VA's notification duties have been met in this case. In this case, all relevant records identified by the Veteran have been obtained or received from the Veteran himself. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record also shows that the Veteran was afforded examinations in connection with his appeal in October 2010, August 2012, and March 2014. The Board finds these examinations are adequate. In sum, the Board finds that VA's notice and assistance duties have been met. II. Discussion 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. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The Veteran's residuals of a right knee arthroplasty have been evaluated under Diagnostic Code 5055 (knee replacement). Under this code, after a 100 percent rating is in effect for one year following a knee replacement, a minimum rating of 30 percent is be assigned for prosthetic replacement of a knee joint, with intermediate degrees of residual weakness, pain, or limitation of motion, rated by analogy to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is assigned where there are chronic residuals consisting of painful motion or weakness in the affected extremity. A rating higher than 60 percent is not warranted under this or any other code provision pertaining to the knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. The evidence during this period reveals that the Veteran's residuals of a right knee arthroplasty were manifested by chronic residuals involving severe weakness. In a statement dated September 2009, the Veteran wrote, "I still use a brace and a cane for stability and take pain pills supplied by VA." An October 2010 VA examination report also lists the Veteran's complaints of constant right knee pain and weakness, as confirmed on physical examination. Moreover, weakness in his right knee was so severe that on March 24, 2010, he was taken to the emergency room after falling and injuring his left ankle. In light of these findings, the Board finds that the Veteran's right knee arthroplasty was manifested by severe weakness, thereby meeting the criteria for a 60 percent rating since July 1, 2009. Because the Veteran's right knee disability is rated 60 percent disabling since July 1, 2009, a higher rating is unavailable under any other diagnostic code because of the "Amputation Rule." This rule essentially provides that the combined ratings for disabilities of an extremity shall not exceed the rating for amputation at the elective level. 38 C.F.R. § 4.68. In this case, the "Amputation Rule" precludes a rating in excess of 60 percent for pathology involving one knee. 38 C.F.R. §4.71a, DC 5162 (the rating for amputation at the middle or lower third of the thigh). Thus, the Board need not consider whether a disability rating higher than 30 percent is warranted for his residuals of a gunshot wound of the right knee involving instability under Diagnostic Code 5257. In any event, 30 percent is the maximum rating available under this code provision. III. Extra-schedular Consideration The Board has also considered whether the Veteran's right knee disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2014); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extra-schedular evaluation if the case 'presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.' 38 C.F.R. § 3.321(b)(1) (2015). If the evidence raises the question of entitlement to an extra-schedular rating, the threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, 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. Thun v. Peake, 22 Vet. App. 111 (2008). 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In this case, though, the Veteran's right knee disabilities, i.e., residuals of a gunshot wound injury of the right knee and resultant arthroplasty, are manifested by chronic pain and weakness. Because these manifestations are contemplated in the rating criteria, extra-schedular consideration is not warranted. Entitlement to a total rating for compensation based on individual unemployability (TDIU) is a potential element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board previously awarded a TDIU based on the right knee disability. Entitlement to an extraschedular combined rating is also a potential element of the increased rating claim. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). A combined effects extraschedular rating is meant to be a "place holder" between the schedular combined rating and a total rating. Johnson. As just noted, the Veteran has a combined total rating; further consideration of a combined effects extraschedular rating is not warranted. Special Monthly Compensation (SMC) at the Housebound Rate The Board has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation SMC under 38 U.S.C.A. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim"). Special monthly compensation is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by the statute. Under the law, subsection 1114(s) benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. A TDIU may satisfy the "rated as total" element of section 1114(s) when the TDIU is based on a single disability, but not multiple disabilities. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). The provisions of 38 C.F.R. § 4.16(a), which provide that certain disabilities may be considered a single disability for TDIU purposes; do not apply to "rated as total" requirement for housebound benefits. Buie. In this case, the Veteran has been awarded TDIU based on the combination of his right knee disabilities. Service connection is also in effect for posttraumatic stress disorder, rated 30 percent disabling; multiple rib scars, rated 10 percent disabling; and a right great toe disability rated 10 percent disabling. As such, he does not have a single disability rated as total for purposes of SMC at the housebound rate under 38 U.S.C.A. § 1114(s). It follows that the Board need not further consider entitlement to SMC. ORDER A 60 percent rating for the Veteran's right knee arthroplasty is granted since July 1, 2009. A disability rating higher than 30 percent for residuals of a gunshot wound of the right knee involving instability is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs