Citation Nr: 1756925 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-22 913A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased rating for chondromalacia patella, status post right knee arthroscopy (formerly bilateral), rated at 10 percent from September 18, 2008. 2. Entitlement to an increased rating for chondromalacia patella, status post left knee arthroscopy, rated at 10 percent based on limited knee extension, from September 18, 2008 to March 3, 2014 (exclusive of two periods of temporary total disability ratings for surgical convalescence). 3. Entitlement to an increased rating for left knee arthritis, status post surgery, rated at 10 percent based on limited knee flexion, from March 3, 2014. 4. Entitlement to an increased rating for left knee instability, rated at 20 percent from July 25, 2011 to March 2, 2014, and 30 percent since March 3, 2014. 5. Entitlement to an extension of time period beyond the temporary total evaluation due to surgical convalescence awarded from October 21, 2010 through December 31, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1980 to August 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2009 and March 2011 rating decisions of a Department of Veteran Affairs (VA) Regional Office (RO). The case was remanded in May 2017 by another Veterans Law Judge (VLJ) to arrange for a hearing before the Board. In August 2017, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. The issues involving increased ratings for the Veteran's bilateral knee disability are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The evidence is at least in relative equipoise as to whether the Veteran experienced severe postoperative residuals for at least one year following an October 2010 left knee surgery. CONCLUSION OF LAW The maximum available extension (to November 1, 2011) for temporary total evaluation due to surgical convalescence following October 12, 2010 surgery is warranted. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.30 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as this decision grants the maximum available extension under the pertinent law for the Veteran's temporary total disability rating based on convalescence following an October 2010 surgery and remands the remaining matters, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis If treatment of a service-connected disability results in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals including, but not limited to, continued use of crutches or prohibition of regular weight-bearing; or (3) immobilization by cast, without surgery, of one major joint or more, a temporary total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted for a period of one, two, or three months. Awards are to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release. 38 C.F.R. § 4.30. In addition, extensions of up to three months beyond the initial three may be made based on continuation of the conditions mentioned above. Finally, an extension of one or more months, up to six months, beyond this initial six month period may also be made based on surgery with severe postoperative residuals or immobilization by cast, without surgery, of one major joint or more. Id. at (b)(2). Thus, the maximum available extension of a temporary total rating is up a year from the first day of the month following hospital discharge or outpatient release. VA treatment records clearly show the Veteran underwent an October 21, 2010 left knee surgery. Postoperative notes show he was issued crutches and a walker, which improved his mobility. He said he needed assistance with stair negotiation at all times, but was nonetheless discharged to home with family support. In November 2010, the Veteran felt his postsurgical swelling and pain were acceptable. The wound was clean and dry with some swelling and diffuse tenderness. Neurovascular function was stable. The Veteran was to start rehabilitation and follow up in eight weeks. On January 2011 evaluation, he complained of increased pain in the left knee following surgery in October 2010. He said he slipped in the prior week, was already in physical therapy, and wore a brace on the left knee. A November 2010 statement alleges the temporary rating should reflect at least six months of convalescence and reported that the Veteran had been wearing a knee brace and using a cane since his October 2010 surgery. He also said his VA doctor indicated his full recovery would take six to eight months. In May 2011, the Veteran said he still needed a cane and brace to walk and his left knee continued to be unstable. On October 2011 VA examination, the examiner noted that the Veteran continued to suffer from functional loss due to, among other things, weakened movement, incoordination, impaired ability to execute skilled movements smoothly, painful movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Moreover, there continued to be left knee muscle weakness compared to the right and the examiner explicitly noted that residuals of his bilateral knee arthroscopies included giving way on both sides. The examiner also noted the Veteran continued to require constant use of canes to ambulate. A later addendum indicates that medial-lateral instability testing could not be performed due to pain and apprehension. On subsequent July 2014 VA examination, several years afterwards, the examiner noted continued functional loss due to, among other things, instability, disturbance of locomotion, and interference with sitting. Moreover, the examiner also noted continued left-sided weakness (compared to the right) as well as left-sided instability (compared to the right) on medial-lateral testing. He also continued to require constant use of canes for ambulation. At the August 2017 hearing, the Veteran testified that his treating physician, Dr. Silvestri, informed him at the time that he would require six to eight months' recuperation time from the October 2010 surgery. He said that the surgery involved a couple of meniscal tear repairs, grinding the cushions, and removing a piece of his kneecap. He said that he went through three months of rehabilitation, but that the facility was "in a hurry to get [him] out of there." He said he was given freeze spray to help his knee bend more, but it only lengthened his recovery time. He said it took him about 10 months to finish recuperating, and is still using a cane at present. At eight and a half or nine months, he was still using crutches and a full knee brace. During the 10 month recovery period, he said he was unable to work as a heavy equipment operator because he needed to use crutches. He also said he couldn't go back to work afterwards because he was unable to pass a physical examination with crutches and a full knee brace on. Based on the evidence above, the Board finds that the evidence reasonably shows that the Veteran's October 2010 left knee surgery resulted in severe postoperative residuals such as necessity for continued use of crutches and prohibition of regular weight-bearing long after the temporary total rating was terminated in January 2011. In this regard, the Board notes that the Veteran is perfectly competent to report on observable symptomatology (such as his ability to walk with or without assistive devices). It is notable that he also consistently indicates his surgeon estimated that his recovery would take six to eight months. Thus, the Board finds his statements are both competent and credible evidence bearing on the actual and estimated recuperation time following his surgery. Crucially, VA examination reports from October 2011 (a year after the surgery in question) and July 2014 (several years after the surgery in question) show that he continued to have problems such as disturbance of locomotion, instability, and left-sided weakness, all of which would prevent regular weight-bearing. In fact, the October 2011 examination report explicitly notes continued interference with weight-bearing on the left side and both examination reports noted he still required a cane to ambulate, which certainly suggests a prolonged inability to perform regular weight-bearing. Thus, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran suffered severe postoperative residuals, specifically including prohibition of regular weight-bearing, for well over a year after his October 21, 2010 left knee surgery. Consequently, resolving all remaining reasonable doubt in the Veteran's favor, the Board finds that, pursuant to the governing regulations, a maximum extension of the temporary total disability rating from October 21, 2010 (the date of his surgery) to November 1, 2011 (one year from the first day of the month following his hospital discharge) is warranted. ORDER The appeal is granted. REMAND The Veteran testified at the August 2017 hearing that his right and left knee disabilities had worsened since the most recent VA examination. Thus, a contemporaneous examination is needed. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated records of VA or adequately identified private evaluations or treatment the Veteran has received for his left and right knee disabilities. 2. Then, arrange for the Veteran to be examined by an orthopedist to determine the current severity of his right and left knee disabilities. Based on an examination, review of the record, and any tests or studies deemed necessary (e.g., stability, sensory, or neurological evaluations), the examiner should describe all pathology, symptoms (frequency and severity), and associated impairment of function in sufficient detail to allow for application of the relevant rating criteria (Diagnostic Codes 5256-63). Range of motion studies must be completed, and must include active and passive motion with and without weight-bearing. The examiner should also note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors as well as whether the Veteran suffers from residuals of his prior arthroscopies or meniscectomies (and, if so, what those residuals involve). A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. The AOJ should then review the record and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (2014). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs