Citation Nr: 1745568	
Decision Date: 10/12/17    Archive Date: 10/19/17

DOCKET NO.  03-37 208	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for residuals of a dislocated right knee, prior to September 19, 2014.

2.  Entitlement to a rating in excess of 30 percent for right total knee arthroplasty.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Veteran represented by:	Virginia A. Girard-Brady, Attorney


ATTORNEY FOR THE BOARD

Mike A. Sobiecki, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from November 1978 to December 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2007 and July 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

In statements dated November 2007 and January 2010, the Veteran, through her attorney, requested a Board hearing.  In a statement dated May 2010, prior to the date of her hearing, she withdrew her hearing request.  38 C.F.R. § 20.704(e) (2016).

In a March 2012 decision, the Board, inter alia, remanded the issues on appeal for further development.

In an October 2014 rating decision, the RO granted service connection for right total knee arthroplasty (previously rated as residuals, dislocated right knee), effective September 19, 2014.  In a February 2017 rating decision, the RO granted separate noncompensable evaluations for post-prosthetic anterior right knee scar and right leg length discrepancy, both associated with the right total knee arthroplasty.

The issues of entitlement to an increased rating for residuals of a dislocated right knee and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ).

FINDING OF FACT

The Veteran's right total knee arthroplasty manifests in a normal range of flexion and extension and more nearly approximates the criteria corresponding to a minimum rating under 38 C.F.R. § 4.71a, Diagnostic Code 5055.


CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent for right total knee arthroplasty have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.16, 4.27, 4.40-4.71, 4.71a, Diagnostic Code 5055 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.  38 U.S.C.A. § 1155 (West 2014).  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1 (2016).

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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  

The Veteran's service-connected right total knee arthroplasty (right knee disability) is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055, for prosthetic replacement of the knee joint.  Under DC 5055, a 100 percent rating is assigned for 1 year following implantation of prosthesis.  Thereafter, a 30 percent rating is the minimum rating; where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to DCs 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula); and a 60 percent rating is warranted where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity.

The Veteran seeks an increased evaluation for her right knee disability.  It is presently rated 100 percent from September 19, 2014 to November 1, 2014 for convalescence pursuant to 38 C.F.R. § 4.30; rated 100 percent from November 1, 2014 to November 1, 2015 pursuant to DC 5055; and rated 30 percent from November 1, 2015 onward pursuant to DC 5055.  The Board finds that the assignment of a 100 percent rating from September 19, 2014 to November 1, 2015 is appropriate and shall not be disturbed.  The following discussion will only consider whether a rating in excess of 30 percent is warranted from November 1, 2015 onward.  For the reasons that follow, the Board finds that an increased rating is not warranted.

Based on the evidence of record, the Veteran's right knee disability more nearly approximates the criteria for a 30 percent rating, the minimum rating under DC 5055.  The September 2016 examination showed that the knee disability is generally without residuals.  While the Veteran did report occasional use of a cane to aid in ambulation, she otherwise denied experiencing functional loss or impairment.  She reported pain flares but also that she did not experience flare-ups.  Objective testing showed normal range of motion for flexion and extension, to include on repetitive testing, and without pain.  Muscle strength testing was normal, there was no ankylosis, and there was no history of recurrent subluxation, lateral instability, or recurrent effusion.  The examiner indicated that the disability was without residuals and it did not cause any occupational impairment.  Given these findings, the minimum 30 percent rating is warranted under DC 5055.

DC 5055 provides two avenues through which to obtain a higher rating.  First, under DC 5055 itself, a 60 percent rating is warranted where there are chronic residuals of severe painful motion or weakness.  As the evidence does not show that such residuals are present, a 60 percent rating is not warranted in this case.  Second, DC 5055 allows for rating by analogy where there is an intermediate degree of residual pain, weakness, or limitation of motion.  The analogous rating is done via DCs 5256, 5261, and 5262.  Through such analogous ratings, a claimant is potentially able to obtain a higher 40, 50, or 60 percent rating.  In this case, a higher rating is not warranted pursuant to any of these DCs.  A higher rating is not warranted under DC 5256 because the Veteran's right knee disability does not manifest in ankylosis.  A higher rating is not warranted under DC 5261 because the Veteran's extension is normal.  Furthermore, the functional loss factors of 38 C.F.R. §§ 4.40 and 4.45 cannot be used to show that the Veteran's disability approximates a more limited amount of extension because the functional loss factors considered in those regulations are already contemplated by DC 5055.  See 38 C.F.R. § 4.14. Lastly, a higher rating is not warranted under DC 5262 because the evidence does not show that the Veteran experiences impairment of the tibia and fibula.

The Board has considered whether separate ratings are warranted.  The September 2016 VA examination report showed that the only two residuals of the total knee replacement were a surgical scar and a leg length discrepancy.  Separate evaluations for these disabilities were granted in a February 2017 rating decision; the Veteran has not appealed that decision.

The Board has considered whether staged ratings are warranted; however, the Veteran is rated 30 percent under DC 5055 and at no point has her disability approximated the criteria for a higher rating.  Accordingly, the assignment of staged ratings is not warranted.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  There are no additional expressly or reasonably raised issued presented on the record.


ORDER

A rating in excess of 30 percent for right total knee arthroplasty is denied.


REMAND

Residuals of a Dislocated Right Knee, Prior to September 19, 2014

The Veteran seeks a rating in excess of 10 percent for residuals of a dislocated right knee, prior to September 19, 2014.  The appeal period begins on May 4, 2008, one year prior to VA's receipt of the claim for an increased rating.  Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).  

The Veteran has undergone two VA examinations: one in June 2009 and a second in September 2016.  In a March 2012 decision, the Board determined that the June 2009 examination was inadequate with respect to its discussion of functional loss, as required by DeLuca v. Brown, 8 Vet. App. 202 (1995).  Thus, the claim was remanded so that the Veteran could be scheduled for a new examination.  The September 2016 VA examination would follow.  

The discussion of functional loss contained in the September 2016 VA examination report relates to the Veteran's right knee status post total knee arthroplasty.  It is not representative of the functional loss that may have existed prior to replacement of the knee by prosthesis; therefore, it is not applicable to the relevant appeal period.  The record does not contain an adequate discussion of functional loss as required by DeLuca for the period prior to September 19, 2014.  On remand, the Veteran should be scheduled for a new VA examination and the examiner should provide a retrospective DeLuca opinion for the period from May 4, 2008 to September 19, 2014.  38 C.F.R. § 4.2; see generally Sharp v. Shulkin, 29 Vet. App. 26 (2017) (an opinion should be formulated using all procurable evidence, to include the Veteran's lay statements).

TDIU

The development required for the evaluation of the right knee disability will provide clarity as to the functional impact of the disability; thereby impacting the determination of whether entitlement to a TDIU is warranted.  Accordingly, the claims are inextricably intertwined, see Harris v. Derwinski, 1 Vet. App. 180 (1991), and adjudication of the claim for a TDIU is deferred.

Accordingly, the case is REMANDED for the following actions:

1.  Schedule the Veteran for a VA examination for her right knee disability.  The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination.

The examiner is asked to express a retrospective opinion on functional loss for the period from May 4, 2008 to September 19, 2014.  In doing so, the examiner must answer whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use overtime or during flare-ups.  The examiner should assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible.

The examiner should consider an April 2009 VA treatment record that noted knee weakness, and the June 2009 VA examination report wherein the examiner observed pain flares at 70 degrees flexion and also noted that the Veteran experiences decreased stamina on repetitive use.

As the opinion the examiner must provide is a retrospective opinion, the examiner will necessarily be unable to observe the Veteran during a flare-up or after repeated use over time.  Nonetheless, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of repeated use or flares' severity, frequency, duration, and/or functional loss manifestations.  To be clear, the Veteran should be asked to give a retrospective lay description of such characteristics, and the examiner should consider her response in formulating the opinion.

If it is not feasible to determine the extent to which the Veteran experiences additional functional impairment on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so.  The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. 

A complete rationale must be provided for all opinions expressed.

2.  Finally, readjudicate the appeal.  If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112.




______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs