Citation Nr: 1745565	
Decision Date: 10/12/17    Archive Date: 10/19/17

DOCKET NO.  13-26 521	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an evaluation in excess of 30 percent for total left knee replacement and revision.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Rippel, Counsel


INTRODUCTION

The Veteran served on active duty from January 1955 to July 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee that continued a 30 percent rating for total left knee replacement and revision.

In August 2016, the Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing at the RO in Nashville, Tennessee.  A transcript of the proceeding has been associated with the claims file.

In a November 2016 decision, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ).  As sufficient efforts were made to obtain the noted medical records and the requested medical examination was obtained, the Board finds the directives have been substantially complied with, and the matter again is before the Board.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's left total knee replacement and revision has been manifested by chronic severe painful motion or weakness of the left lower extremity.



CONCLUSION OF LAW

The criteria for a rating of 60 percent, but no higher, for left total knee replacement and revision have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5055 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Compliance with Stegall

As noted in the Introduction, the Board previously remanded these matters in November 2016.  The Board's Remand instructed the RO to (1) obtain VA and private treatment records; (2) schedule the Veteran for a VA examination to determine the current severity of his left knee disability and (3) readjudicate the claim.

The RO obtained all available records.  The Veteran was scheduled for and attended an February 2017 VA knee examination.  The RO readjudicated the matter in a May 2017 Supplemental Statement of the Case (SSOC).  As a result of these steps taken, the Board finds that there has been compliance with its previous remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

II.  VA's duty to notify and assist

VA's duty to notify was satisfied by a December 2011 letter and additional letters sent during the claim period.  See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

VA also has a duty to assist a Veteran in the development of the claim.  That duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development as to the issue decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, identified private treatment records, relevant VA medical records and VA medical examinations, and the Veteran's own contentions. 

The Board finds that the February 2017 VA knee examination is adequate for rating purposes even in consideration of Correia v. McDonald, 28 Vet. App. 158 (2016), which would require that the examination of the knee must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight-bearing and non weight-bearing in compliance with 38 C.F.R. § 4.59 (2016).  The Veteran declined to participate in much of the examination secondary to pain, and the claim is being granted to the 60 percent level, the maximum for a total knee replacement beyond the initial 1 year period following implantation of prosthesis.  In point of fact, the criteria for an even higher rating, thigh amputation, would not involve assessment of range of motion.  

The actions of the VLJ at the Board hearing supplement the VCAA and comply with any related duties owed during a hearing.  See 38 C.F.R. § 3.103.

III.  Increased Rating for Left Total Knee Replacement and Revision

      A.  Applicable Laws

Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate rating codes identify the various disabilities.  38 C.F.R. Part 4.  In general, when 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).

The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations.  Schafrath v. Derwinski, 1 Vet.App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

The terms mild, moderate, and severe are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just.  38 C.F.R. § 4.6  (2016).  Use of such descriptive terms by medical examiners, although an element of the evidence to be considered by the Board, is not dispositive of an issue.  Such evidence must be interpreted in light of the whole recorded history, reconciling the evidence into a consistent picture so that the current rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2016).

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.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has considered the entire record.  The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378   (Fed. Cir. 2000).  Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability.

      B.  Discussion and Analysis

Historically, the Veteran injured his left knee in service, and service connection for left knee internal derangement residuals was in effect from June 1961 through August 2007.  He underwent a total left knee replacement in August 2007, and, effective August 31, 2007, the left total knee replacement was rated 100 percent, with a 30 percent rating effective October 1, 2008.  He underwent revision in October 2010, and total left knee replacement with revision was rated 100 percent effective October 2, 2010, and 30 percent effective December 1, 2011.  

The Veteran filed a claim for increased rating in December 2011.  

The left knee is rated under Diagnostic Code (DC) 5055, the rating criteria for the prosthetic replacement of a knee joint.  Under this code, for one year following implantation, the knee joint warrants an evaluation of 100 percent.  38 C.F.R. § 4.71.  Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent evaluation is warranted.  Id.  Where there are intermediate degrees of residual weakness, pain, or limitation of motion, Diagnostic Code 5055 instructs that they are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262.  The minimum evaluation for the residuals of the prosthetic replacement of a knee joint is 30 percent.

When evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination.  38 C.F.R. §§ 4.40 , 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995).

In short, Board finds the records from Campbell Clinic Orthopaedics combined with the Veteran's credible testimony as to pain and limitations place the evidence in equipoise as to whether chronic residuals consisting of severe painful motion or weakness in the left extremity are approximated, and thus a 60 percent rating is warranted.  

This claim was remanded by the Board because the VA examination record in February 2012 with August 2014 addendum was not illuminating as to the current manifestations of the left knee replacement.  Specifically, an assessment of functional limitation due to flare ups was not made in 2012 and could not be reached without resorting to mere speculation without examining the Veteran, in 2014.  The February 2017 examination report indicates that the Veteran largely declined to participate in testing due to pain.  Nonetheless, he did describe flare-ups as a "sharp and excruciating" with swelling and stiffness that occurs with increased activity.  He reported that he could not perform prolonged standing, sitting and walking; climbing stairs, bending, kneeling and squatting.  Occasional cane and walker use was noted.  

Records from Campbell Clinic Orthopaedics reflect that the Veteran has received ongoing treatment for severe left knee pain at all times relevant to the claim.  In July 2016 his doctor observed he was having a tough time with his left knee.  Bracing did not help.  It was noted that he had basically a painful prosthesis of the left knee.  He was navigating with a cane.  The doctor observed that this was not a normal total knee replacement and there was a lot of patellar overgrowth, which was obviously giving discomfort.  The assessment was painful left total knee arthroplasty.  He was given Neurontin and narcotics for his left knee pain.  X-rays showed that the patella was sitting very tilted in his trochlea and had significant overgrowth of his lateral facet of his patella.  The physician stated that the significant overgrowth of the lateral facet may require surgery if they cannot get the knee feeling better.  

In testimony and lay statements, the Veteran has consistently asserted that his knee gives way, is unstable, cannot support weight and causes many falls.  He reported that he needs a walker due to his left knee, and cannot climb stairs without pulling himself up by the hand rail.  

Given the Veteran's credible reports of left knee pain, weakness, and instability throughout the course of the appeal, as well as the records from Campbell Orthopaedics, with emphasis on the July 2016 doctors' assessments as to the chronic, residuals of severe painful motion and weakness of the left knee, the Board finds that the Veteran's total left knee replacement and revision most closely approximates the criteria for a 60 percent rating.  Although the February 2017 VA examiner indicated that the symptomatology of the left knee results in no more than an intermediate degree of residual weakness, pain, or limitation of motion, the Board finds the evidence as discussed above to in equipoise regarding the severity of the Veteran's left knee disability throughout the appeal period.  The Board finds that the testimony and the Campbell records suggest severe chronic residuals.  The benefit of the doubt in this regard is accorded to the Veteran.  See 38 C.F.R. § 4.7.; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

A rating in excess of 60 percent is not warranted at any time during the course of the appeal, and a staged rating is inappropriate on the facts found.  Under Diagnostic Code 5055 the only higher rating available is 100 percent, which is for application only for one year following implantation of a prosthesis.  Thus, a higher rating under Diagnostic Code 5055 is unavailable.  

The Board considered a rating under the following Diagnostic Codes: 5256 (ankylosis); 5257 other impairment, including recurrent subluxation or lateral instability); 5258 (dislocated semilunar cartilage); 5259 (symptomatic removal of semilunar cartilage); 5260 (limitation of flexion); 5261 (limitation of extension); and 5263 (genu recurvatum); however, none of those Diagnostic Codes provide ratings in excess of 60 percent.  Additionally, there is clearly no thigh amputation, so DC 5160 and 5161 are not for consideration.  

In conclusion, the Board finds that while a 60 percent rating is warranted, at no time during the appeal have the criteria been met for a schedular rating in excess of 60 percent.

Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017)(confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); see also Yancy v. McDonald, 27 Vet. App 484 (2016).


ORDER

An evaluation of 60 percent is granted for total left knee replacement and revision, subject to the regulations governing the award of monetary benefits.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs