Citation Nr: 1752384 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-34 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased disability rating for a right knee disability, status post replacement, currently evaluated at 30 percent. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his fiancé. ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1978 to October 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2017 Board video conference hearing. Furthermore, the undersigned VLJ granted a motion to advance this appeal on the docket based on the Veteran becoming homeless, pursuant to 38 U.S.C.A. § 7017 (a)(2)(C) (West 2014) and 38 C.F.R. § 20.900 (c) (2016). A transcript of this hearing has been associated with the claims file. This is a paperless appeal located on the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The Board has reviewed the electronic records maintained in both VBMS and Virtual VA to ensure consideration of the totality of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT For the period from May 1, 2011, the Veteran's right knee disability has manifested severe painful motion. CONCLUSION OF LAW The criteria for a disability rating of 60 percent for a right knee disability, status post replacement from May 1, 2011, have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Schedular Rating Law and Analysis In evaluating the severity of a certain disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See, 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). With respect to the right knee disability, the Veteran is in receipt of a 100 percent rating from October 26, 2010 to April 30, 2011 and a 30 percent rating from May 1, 2011 under Diagnostic Code (DC) 5055. Because the Veteran was in receipt of a 100 percent rating from October 26, 2010 to April 30, 2011, a higher schedular rating is not for assignment during that period of the appeal. The Veteran maintains that this current rating does not adequately represent his level of impairment and contends he is entitled to a higher rating. Under Diagnostic Code 5055, following the 100 percent rating for one year, a 60 percent rating is warranted if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula). 38 C.F.R. § 4.71a, Diagnostic Code 5055. Upon review of the evidence of record, lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's right knee disability more nearly approximates a 60 percent rating from May 1, 2011. VA treatment records show that the Veteran had a total right knee replacement in August 2009. The Veteran was afforded a VA knee examination in October 2010. The Veteran reported intermittent knee pain, mainly on prolonged walking and sitting, as well as intermittent swelling. The Veteran reported using a cane for ambulation, but not a knee brace. It was noted the Veteran limps. The Veteran reported a "painful clicking sensation" when trying to fully extend his knee. It was noted the Veteran used Tramadol for pain, which "[did] not interfere with his activities of daily living (ADLs)." Upon examination, range of motion was measured as: 100 degrees flexion, "with pain in the last 10 degrees and 2+ crepitus." It was further noted that the knee locked at the last 10 degrees of extension, and then extends fully with a click. X-rays revealed good alignment of the prosthesis. The Veteran stated in his March 15, 2011 Notice of Disagreement with the assigned ratings, that he is "always in pain" and is "unable to walk for a prolonged distance". The Veteran then stated that he uses a knee brace and is "on medication all the time." The Veteran further stated the he was unable to do any type of physical exercise and that his knee is not stable. An April 2012 VA outpatient treatment record noted that the Veteran used pain medication twice a day and also used a cane, double upright knee arthrosis and a topical analgesic spray. The Veteran was afforded a VA knee examination in January 2013. It was noted that the Veteran had a total right knee arthroplasty in August 2009 and arthroscopic lysis of adhesions in October 2010. It was noted that the Veteran regularly uses braces, a cane, and a walker for his right knee disability. Regarding the Veteran's ability to work, it was noted that his right knee disability results in difficulty with walking and prolonged standing, and that the Veteran cannot squat or bend. It was noted that Veteran's last job was in 2008 as a truck driver. The Veteran reported taking Tramadol, Tylenol, and Meloxicam. It was further noted that x-rays revealed degenerative arthritis in the right knee. A March 2015 letter from a doctor at the Miami VAMC notes that the Veteran "has had progression of his knee pain over the past several years to the point he was no longer able to perform his job as a truck driver." It was noted that in 2009, the Veteran had a total right knee replacement. It was further noted that a March 2015 MRI revealed "multiple meniscal tears and degenerative changes with softening of his cartilage." The author also noted that the Veteran is unable to exercise. The Veteran testified at the May 2017 hearing that he does not have full range of motion in his right knee. He Veteran stated that he cannot bend his knee more than 90 degrees and has pain on motion. The Veteran further stated that his right knee "feels like it's going to give", and that "it buckles on [him]." The Veteran further stated that his knee swells and that any exertion on it causes pain. The Veteran then stated that he has episodes with his right knee where he has to stay in bed for more than a day. The Veteran stated that he uses braces and stockings to support his knee. The Veteran was afforded a VA knee examination in September 2017. The Veteran reported increasing, intermittent pain, swelling, and stiffness with prolonged standing and walking. The Veteran further reported limitation with lifting heavy objects, bending, squats, climbing stairs, and coming from sitting to standing. The Veteran reported flare ups daily pain with prolonged standing and walking that last all day, as well as functional limitation of motion due to pain. Upon examination, initial range of motion was measured as follows: 80 degrees flexion; 80 degrees extension. It was noted that the range of motion contributes to a functional loss due to pain. Evidence of pain was noted on weight bearing, as was objective evidence of localized tenderness on deep palpation at the lateral, anterior, and medial regions. Objective evidence of crepitus was noted. Constant use of knee braces was noted, as was regular use of a cane and a walker. X-rays reveal degenerative arthritis of the right knee. Pain was noted on passive range of motion testing and when not bearing weight. The Board finds that, based upon review of all the lay and medical evidence, the Veteran is entitled to a 60 percent rating under Diagnostic Code 5055 from May 1, 2011, which applies to chronic residuals consisting of severe painful motion or weakness in the affected extremity. Although Diagnostic Code 5055 does not define the word "severe," the Board's review of the entirety of the evidence supports a finding of severe symptoms associated with the Veteran's right knee condition. In his March 2011 NOD, the Veteran reported constant pain which required medication. The March 2015 letter from a doctor at the Miami VAMC notes that the Veteran "has had progression of his knee pain over the past several years to the point he was no longer able to perform his job as a truck driver. The Veteran testified at the May 2017 hearing that his knee swells, that any exertion on it causes pain, and that he has episodes with his right knee where he has to stay in bed for more than a day. At the September 2017 VA knee examination, the Veteran reported increasing, intermittent pain, swelling, and stiffness with prolonged standing and walking, and daily flare ups daily with pain that lasts all day, as well as functional limitation of motion due to pain. It was noted that the range of motion contributes to a functional loss due to pain. Evidence of pain was noted on weight bearing, as was objective evidence of localized tenderness on deep palpation at the lateral, anterior, and medial regions. Constant use of knee braces was noted, as was regular use of a cane and a walker. X-rays reveal degenerative arthritis of the right knee. Pain was noted on passive range of motion testing and when not bearing weight. Based on this evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran does suffer from severe painful motion in the right knee, and a 60 percent rating under Diagnostic Code 5055 is therefore warranted for from May 1, 2011, the period following the expiration of the 100 percent rating assigned from October 26, 2010 to April 30, 2011. The Board finds that resolving any doubt in the favor of the Veteran, that the weight of the evidence both lay and medical, supports the finding that the symptoms of the right knee condition more nearly approximate the 60 percent rating. The Board further finds that a 100 percent rating under Diagnostic Code 5055 for the period on appeal, not including the periods that have already been assigned a 100 percent rating, is not applicable, as it has been more than one year following implantation of the prosthesis. In light of this decision, the Veteran now is in receipt of the highest allowable schedular rating for his right knee; as such, a rating in excess of 60 percent is not warranted pursuant to Diagnostic Code 5055. ORDER An increased rating of 60 percent for a right knee disability, status post replacement, from May 1, 2011 is granted, subject to the rules governing the award of monetary benefits. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs