Citation Nr: 1752235	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO. 14-07 139	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an increased rating for osteoarthritic changes of the right knee, status post right knee partial replacement, currently evaluated as 30 percent disabling, to include extension of a temporary total rating following right knee surgery after February 1, 2012.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

N. Peden, Associate Counsel



INTRODUCTION

The Veteran had active service from November 1984 to December 1993. 

This matter comes to the Board of Veterans' Appeal (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the issue on appeal. 

In a September 2012 rating decision, the RO assigned a temporary total (100 percent) disability rating under 38 C.F.R. § 4.30 effective from September 15, 2011 through February 1, 2012, based on surgical treatment necessitating convalescence. In an October 2012 rating decision, the RO granted a 30 percent disability rating for the Veteran's service connected osteoarthritic changes of the right knee, status post right knee partial replacement, under Diagnostic 5259-5010, effective from February 1, 2012, following the termination of the 100 percent temporary total rating.

The issue of entitlement to a rating in excess of 30 percent for osteoarthritic changes of the right knee, status post right knee partial replacement, from October 16, 2012, is addressed in the Remand portion of the decision below and is Remanded to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

1. On September 15, 2011, the Veteran underwent partial right knee replacement surgery, the nature and extent of which is reasonably shown to be equivalent to prosthetic replacement of a knee joint as contemplated by Diagnostic Code 5055.


CONCLUSION OF LAW

The criteria for a temporary 100 percent disability rating based on partial knee replacement of the service-connected right knee for a period commencing September 15, 2011 through October 15, 2012, have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a Diagnostic Code 5055 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and to Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met. See VA correspondence dated July 2012. The Veteran has not alleged prejudice with regard to notice. "Absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, nothing more is required.

Regarding the duty to assist, all identified and authorized records relevant to the matter have been requested or obtained. The record includes available service treatment records, VA treatment and examination reports, and private medical treatment records. The Veteran has not identified any additional records that should be obtained prior to appellate consideration. The evidence of record is sufficient for the Board's review. The Board finds that there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. U.S.C. § 5103A; 38 C.F.R. §3.159 (2017). 

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. The VA medical opinions obtained in this case are adequate, as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. The Board notes that in Correia v. McDonald, No. 13-3238 (U.S. Vet. App. July 5, 2016), the Court interpreted 38 C.F.R. § 4.59 to require expansive range of motion testing. In this case, however, even assuming such was not accomplished, as retroactive range of motion testing cannot be performed, the August 2012 VA examination is still adequate, as Correia stated that its decision should "be taken as requiring the range of motion testing listed in the final sentence of § 4.59 in every case in which those tests can be conducted." Id. at *8 n.7. Further, the Veteran is herein assigned the maximum schedular rating available for her right knee for the entirety of the period following her right knee partial replacement surgery. Consequently, any deficiency in the August 2012 VA examination as now outlined by Correia cannot affect the claim, and is harmless error. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations, and to adjudicate the claim would not cause any prejudice to the appellant.

II. Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 

When there is a question as to which of two evaluations should 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 all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3.

38 C.F.R. § 4.40 provides that disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

The Veteran asserts in her September 2011 claim that she is entitled to a temporary total disability rating for one year following her partial right knee replacement. 

The record reflects that the Veteran received a right medial unicompartmental knee replacement on September 15, 2011. As such, the Board finds the evidence supports the Veteran's entitlement to a temporary total 100 percent rating for partial right knee replacement pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055 (knee replacement (prosthesis)), to include a one month period of convalescence following the surgery under 38 C.F.R. § 4.30.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5055, replacement of either knee joint warrants a 100 percent evaluation for a one year period following implantation of the prosthesis. Thereafter, a 60 percent evaluation is warranted if there are chronic residuals consisting of severely painful motion or severe weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the disability will be rated by analogy to Codes 5256, 5261 or 5262. The mandatory minimum rating is 30 percent. The 100-percent rating for one year following implantation of prosthesis will commence after the initial grant of a one month total rating following hospital discharge to be assigned under 38 C.F.R. § 4.30.

By its very terms, Diagnostic Code 5055 applies to prosthesis of the knee and on its face, does not differentiate between total and partial knee replacements. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. The United States Court of Appeals for Veterans Claims (Court) previously held that the plain language of Diagnostic Code 5055 indicates that the regulation applies only to complete knee replacements, and not to partial knee replacements. See Hudgens v. Gibson, 26 Vet. App. 558, 561 (2014). The Court has held that the plain language of Diagnostic Code 5055 does not apply to partial knee replacements, citing to Dorland's Medical Dictionary's definition of "knee joint" as a compound joint that includes all three compartments of the knee. Hudgens, 26 Vet. App. 558. The Court also compared Diagnostic Code 5055 with Diagnostic Code 5054 (hip replacement), which contains disjunctive regulatory language showing that the Secretary knew how to provide benefits for a prosthesis replacing part of a joint, as opposed to the entire joint, when he intended to do so. Id. The Board observes further that on July 16, 2015, the Secretary published a final rule in the Federal Register that interprets/clarifies VA's interpretation of Diagnostic Codes 5051 through 5056 that a 100-percent evaluation will be in place for a period of one year when the total joint, rather than the partial joint, has been replaced by a prosthetic implant. See 80 Federal Register 42040 (July 16, 2015). 
 
However, in May 2016, the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed the judgment of the Court's previous holding. In Hudgens, the Federal Circuit held that the provisions of Diagnostic Code 5055 were applicable to partial knee replacements. Hudgens, 823 F.3d 630. The Federal Circuit in Hudgens addressed VA's interpretation of prosthetic replacement of joints, 80 Fed. Reg. 42,040, and noted, "We have the authority to decide all relevant questions of law and can set aside a regulation or an interpretation of a regulation relied upon by the Court of Appeals for Veterans Claims when we find it to be arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a stator right; or without observance of procedure required by law." The Federal Circuit declined to give deference to the VA's interpretation of Diagnostic Code 5055 in the Hudgens case and held that the provisions of Diagnostic Code 5055 were applicable to partial knee replacements.

Given this precedential decision, the Board has determined that the Veteran is entitled to a temporary total 100 percent rating for a partial right knee replacement for the regulatory period under Diagnostic Code 5055 effective from September 15, 2011, to October 15, 2012.


ORDER

A temporary 100 percent disability rating for osteoarthritic changes of the right knee, status post right knee partial replacement, for a period commencing September 15, 2011 through October 15, 2012, is granted.


REMAND

The Board finds that remand is necessary to obtain VA examination to determine the current severity of the Veteran's service-connected osteoarthritic changes of the right knee, status post right knee partial replacement.

Of record is a VA examination dated August 2012. The examiner indicated that the Veteran had chronic residuals consisting of severe painful motion or weakness following her partial right knee replacement. The Veteran reported increased pain and stiffness which caused a severe limp as well as an inability to fully extend the right knee. The examiner noted right knee flexion to 90 degrees and right knee extension to 20 degrees. He also noted tenderness or pain to palpation for joint line or soft tissue of the right knee, though he did not find instability or subluxation/ dislocation of the right knee. The Veteran used a cane occasionally to ambulate. 

However, no more recent VA examination has been conducted. As a temporary total disability rating is herein extended to October 15, 2012, the Board finds that additional VA examination is necessary, as the August 2012 examination does not address the severity of the Veteran's right knee disability during the period in question-which begins October 16, 2012. Additionally, the Board finds that the August 2012 examination does not include all necessary findings for an adequate determination. The United States Court of Appeals for Veterans Claims has held that an adequate examination of the knee should record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing, and, if possible, with the range of motion of the opposite undamaged joint, and address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016). Such information is missing from the August 2012 VA examination report.

VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Here, the Veteran must be afforded an additional VA examination to assess the current severity of her service connected osteoarthritic changes of the right knee, status post right knee partial replacement. 

Prior to the examination, up-to-date VA treatment records should be obtained.

1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Request that the Veteran identify any recent private treatment pertinent to her claim and provide information and authorization sufficient for VA to assist her in obtaining any pertinent medical records not yet associated with the record.

2. Upon receipt of all additional records, schedule the Veteran for a VA examination of her service connected osteoarthritic changes of the right knee, status post right knee partial replacement. The record, including a complete copy of this remand, must be made available to the examiner for review, and the examiner must indicate in the examination report that the record was reviewed in conjunction with the examination.

The examiner should opine as to the current nature and extent of the Veteran's osteoarthritic changes of the right knee, status post right knee partial replacement. In rendering this opinion, the examiner must record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing, and, if possible, with the range of motion of the opposite undamaged joint, and must address the necessary findings to evaluate functional loss during flare-ups, or must clearly explain why the required testing cannot be completed or is not necessary.

The examiner should summarize the pertinent evidence of record and reconcile any opinions provided with the other opinions of record. An explanation must be provided if the examiner finds that X-ray studies are not required for adequate opinions. 

3. Then readjudicate the claim in light of this and all other additional evidence. If the claim continues to be denied or is not granted to the Veteran's satisfaction, send her and her representative a Supplemental Statement of the Case (SSOC) and give her an opportunity to respond to it before returning the file to the Board for further appellate consideration of the claim.

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

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. §§ 5109B, 7112 (2012).



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs