Citation Nr: 1745569	
Decision Date: 10/12/17    Archive Date: 10/19/17

DOCKET NO.  11-03 100	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Boise, Idaho


THE ISSUES

1. Entitlement to a rating in excess of 30 percent from June 17, 2010 to June 22, 2011, in excess of 30 percent from August 1, 2012 to May 24, 2016, and in excess of 60 percent thereafter, for left total knee replacement.

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


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Wozniak, Associate Counsel


INTRODUCTION

The Veteran served in the U.S. Air Force from July 1987 to December 1995.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision of the Boise, Idaho, Regional Office (RO). In May 2014, the Board remanded the appeal to the RO for additional development. In an August 2011 rating decision the RO granted a temporary 100 percent rating for convalescence following a left knee operation, effective June 22, 2011. In a May 2017 rating decision the RO increased the Veteran's rating for left total knee replacement from 30 percent to 60 percent, effective May 24, 2016. 

The Veteran's June 2010 notice of disagreement indicates the Veteran was appealing the denial of service connection for his right knee and lumbar spine. In a May 2016 rating decision the RO granted service connection for the Veteran's right knee and lumbar spine. This constitutes a grant of the benefits sought and as a result those issues are no longer on appeal. 

Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence and conducted any appropriate medical inquiry. The appeal is ready for appellate review. 

In June 2012, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record.




FINDINGS OF FACT

1. During the period on appeal, the Veteran's left total knee replacement has been shown to be manifested by no more than constant pain, swelling, weakness, instability, use of a cane, a tearing or stretching feeling, inability to walk for more than ten minutes, trouble sleeping due to pain, inability to sit in the same position, inability to stoop, squat or kneel, limited functional ability, interference with occupation as a furnace technician, no ankylosis or atrophy, and left knee scars measuring 23 cm by 0.9 cm and 19 cm by 0.5 cm. 

2. The Veteran's service-connected disorders make him unable to secure or follow a substantially gainful occupation.


CONCLUSIONS OF LAW

1. The criteria for a rating of 60 percent, since June 17, 2010, for left total knee replacement have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2016).

2. The criteria for a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). 

Diagnostic Code 5003 provides ratings for degenerative arthritis. Degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate diagnostic criteria for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a 20 percent rating is warranted if there are also occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2016).

There are also two relevant note provisions associated with Diagnostic Code 5003. 

Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. 

Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. 

Diagnostic Code 5055 provides the rating criteria for a prosthetic replacement of a knee joint. A 100 percent rating is warranted for one year following implantation of the prosthesis. (The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30). Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055.

Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. Slight disability warrants a 10 percent rating and a moderate disability warrants a 20 percent rating. Severe disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2016).

Diagnostic Code 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2016). 

Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2016). 

Diagnostic Code 5262 provides ratings for impairment of the tibia and fibula. A 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion and requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2016).

The average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71, Plate II.

Under Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are rated as follows: for an area or areas of 144 square inches (929 sq. cm.) or greater a 40 percent rating is assigned; for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.), a 30 percent rating is warranted; for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) a 20 percent rating is warranted; for an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) a 10 percent rating is warranted. 

There are also two relevant note provisions associated with Diagnostic Code 7801.

Note (1): A deep scar is one associated with underlying soft tissue damage. 

Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59.

Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In May 2010, the Veteran was afforded a VA examination. The Veteran reported near constant pain, and additional flare-ups of pain with prolonged walking or standing. The Veteran reported some swelling and that his knee was unstable requiring the use of a cane. The examiner noted Veteran would experience some limitations in his occupation as a furnace technician due to painful bending and kneeling. The Veteran's range of motion measurements were: flexion to 130 degrees with pain throughout and extension of 0 degrees with pain at the end range. The examiner noted the joint was stable and that the Veteran has crepitus with patellar compression. 

In a June 2010 VA treatment note, the Veteran reported having a primary knee surgery in March 2002 and four subsequent knee surgeries to "clean up" from the first surgery. The Veteran also reported that he experiences constant pain and that his knee catches. 

In a July 2010 VA treatment note, the Veteran was seen with a chief complaint of knee pain. The Veteran reported having a knee replacement in 2002 and multiple subsequent surgeries with pain worsening dramatically in the two years preceding the medical note. The clinician noted the Veteran was walking with a cane, unemployed, and seemed inactive. 

A September 2010 VA treatment note indicates the Veteran had continuing knee pain and popping. A June 2011 VA treatment note indicates the Veteran had a total knee arthroplasty in June 2011.

In his June 2012 hearing testimony, the Veteran indicated that he has experienced locking in his left knee since his second knee replacement surgery, which occurred approximately a year prior to the hearing. The Veteran also reported constant pain and a stretching or tearing feeling in the muscle when standing. The Veteran also reported that he has a pending case for social security disability that had not yet been decided. 
The Veteran had multiple complaints of chronic knee pain from March 2013 to March 2016. In a March 2013 VA treatment record the Veteran indicated that he has chronic knee pain. A May 2013 vocational rehabilitation letter indicates the Veteran's medical conditions keep him from suitable employment and notes that he was awarded Social Security Administration disability compensation. A June 2013 VA treatment note indicates the Veteran's knee was in pain. In an October 2015 VA treatment note the Veteran stated that his knee instability limits his ability to walk. In a March 2016 VA treatment note the Veteran reported chronic left knee pain that interferes with his ability to walk and sleep. 

In May 2016, the Veteran was afforded a VA examination. The Veteran reported ongoing issues with his left knee that are exacerbated by changes in the weather. The Veteran had forward flexion of 20 to 95 degrees and extension of 95 to 20 degrees. The examiner noted swelling, and inability to stoop, squat, kneel or walk normally and indicated wincing with palpation. The examiner recorded two scars on the left knee, measuring 23 cm by 0.9 cm and 19 cm by 0.5 cm. The examiner also noted pain and weakness causing functional loss which makes the Veteran incapable of standing or walking for more than ten minutes at a time and incapable of sitting in the same position which would cause difficultly in a sedentary job. 

In September 2016 and December 2016 VA treatment note the Veteran reported continued knee pain that has worsened as a result of cold weather. 

In March 2017, the Veteran was afforded a VA examination. Upon examination the Veteran's range of motion measurements were 0 to 110 degrees of flexion and 110 to 0 degrees of extension. The examiner noted the Veteran's pain, weakness, fatigability, and incoordination significantly limit his functional ability. The examiner noted no ankylosis or muscle atrophy. 

During the period on appeal, the Veteran's left total knee replacement has been shown to be manifested by no more than constant pain, swelling, weakness, instability, use of a cane, a tearing or stretching feeling, inability to walk for more than ten minutes, trouble sleeping due to pain, inability to sit in the same position, inability to stoop, squat or kneel, limited functional ability, interference with occupation as a furnace technician, no ankylosis or atrophy, and left knee scars measuring 23 cm by 0.9 cm and 19 cm by 0.5 cm.

Given these facts, the Board finds that the Veteran is entitled to a 60 percent rating for left total knee replacement under Diagnostic Code 5055. The Veteran's scars do not warrant assignment of a separate compensable evaluation as his scars do not meet the minimum requirement for a compensable rating. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7805. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 

VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As a result of the Board's decision in this case, the Veteran is rated at 60 percent for his left total knee replacement for the period on appeal. The Board finds the May 2016 VA examiner's comments regarding limitations of movement and his inability to sit at a sedentary job as relevant and determinative. Combined with the other evidence of record, the Board finds the Veteran's service-connected disabilities prevent him from securing substantially gainful employment. 

	(CONTINUED ON NEXT PAGE)







ORDER

A rating of 60 percent for left total knee replacement, since June 17, 2010 is granted.

A total rating based on individual unemployability is granted.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs