Citation Nr: 1800963 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 10-32 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial increased rating for type II diabetes mellitus rated as 20 percent disabling, effective August 14, 2012. 2. Entitlement to an initial increased rating for right ankle degenerative arthritis rated as 20 percent disabling prior to June 2, 2014, and rated as 10 percent thereafter. 3. Entitlement to an initial increased rating for left knee replacement rated as 30 percent disabling, effective January 2, 2004. 4. Entitlement to a temporary total disability rating following a left knee replacement. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Polly Murphy, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to November 1969 and from May 1970 to March 1972. These matters come to the Board of Veterans' Appeals (Board) on appeal from April 2009 and June 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In an October 2015 rating decision the RO granted service connection for right ankle degenerative arthritis effective February 20, 2009 and rated as 20 percent prior to June 2, 2014 and 10 percent thereafter; and service connection for a left knee replacement rated as 30 percent effective February 20, 2009. The Veteran filed a timely notice of disagreement (NOD) in response to the October 2015 rating decision. Subsequently, in a December 2016 rating decision the RO granted an earlier effective date for service connection for right ankle degenerative arthritis and left knee replacement effective January 2, 2004. In this decision, the Board grants a rating of 100 percent for left knee replacement for the period of one year following an October 20, 2005, left knee arthroplasty revision. The issues of entitlement to an increased rating for right ankle degenerative arthritis, entitlement to an increased rating for left knee replacement, 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). FINDINGS OF FACT 1. The Veteran's type II diabetes mellitus required insulin and a restricted diet, but does not require regulation of activities. 2. On October 20, 2005, the Veteran underwent a revision of left knee arthroplasty with tibial polyethylene exchange. The operation involved replacing the original patellar prosthesis of the left knee joint with a new component. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, 4.119, Diagnostic Code 7101 (2017). 2. The criteria for a one-year evaluation of 100 percent for prosthesis replacement of left knee joint are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Type II Diabetes Mellitus The Veteran contends that his service-connected type II diabetes mellitus warrants a disability rating higher than the 20 percent rating currently assigned under 38 C.F.R. § 4.119, Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). Under 38 C.F.R. § 4.119, Diagnostic Code 7913, a 20 percent evaluation is warranted when diabetes requires the use of insulin or oral hypoglycemic agent, and a restricted diet. In order to warrant a higher 40 percent disability evaluation, the evidence must show diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. The criteria for even higher evaluations, including 60 percent, include the requirements for the 40 percent rating plus additional symptomatology. Importantly, the criterion of regulation of activities for control of diabetes mellitus is required for each rating above 20 percent. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities, and medical evidence is required to support that such avoidance is medically necessary. Camacho v. Nicholson, 21 Vet. App. 360, 361, 364 (2007). Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). A review of the record shows that while the Veteran's diabetes required the use of insulin and a restricted diet, regulation of activities was not medically necessary to control his diabetes. As such, an initial evaluation in excess of 20 percent is not warranted. See Camacho, 21 Vet. App. at 366-67. The Board notes that the Veteran was not afforded a VA examination in regard to this condition. However, VA and private treatment records do not indicate that any clinician found it medically necessary for the Veteran to regulate his activities. Specifically, a letter dated January 2014 from Dr. Thomas Ivan indicated that the Veteran had a medical need for injected insulin based on worsening diabetes mellitus, however regulation of activities was not mentioned. Additionally, the Veteran's private treatment records from Mercy Clinic ADA dated January 2013 and February 2013 and VA treatment records from Seminole County VA CBOC dated October 2014 and June 2016 document that the Veteran was on a diet, and that his treatment plan included an increase in exercise activity. However, the records do not document regulation of activities. In sum, the evidence shows that the Veteran's type II diabetes mellitus did not require the regulation of activities. Accordingly, an initial evaluation in excess of 20 percent is denied. The Board has considered the applicability of the benefit of the doubt doctrine; but, because the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012). Left Knee The Veteran contends that his service-connected left knee disability warrants a disability rating higher than the 30 percent rating currently assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5055. As will be discussed in the remand portion of this decision, the Board finds that a new examination is warrant to determine the nature and severity of his left knee disability, and because they do not include the range of motion testing results required by the Court in Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). Therefore, the claim for an increased rating for the left knee replacement pursuant to the diagnostic criteria predicated upon limitation of motion is being remanded for an additional examination. However, because the evidence of record currently supports a 100 percent rating for left knee replacement for one year following a left knee arthroplasty revision, the Board finds that it is beneficial to the Veteran to bifurcate the claim and grant the one year 100 percent rating in this decision, and remand the issue of entitlement to an increased rating for the left knee replacement on alternate bases for an additional examination. See Soyini v. Principi, 1 Vet. App. 540 (1991). Under 38 C.F.R. § 4.71a, Diagnostic Code 5055, a 100 percent rating is assigned for one year following implantation of knee prosthesis for a service-connected knee disability, followed thereafter by a minimum 30 percent rating, or a 60 percent rating if there are chronic residuals consisting of severe painful motion or weakness. 38 C.F.R. § 4.71a, Diagnostic Code 5055. In October 2005 the Veteran underwent a left knee arthroplasty revision. The October 2005 Operation Report documented a preoperative diagnosis of left knee instability and hyperlipidemia. According to the report, the Veteran underwent a total left knee arthroplasty revision. The surgical report indicated the following: "We subsequently removed the polyethylene without difficulty. There was an old osteonic component. Once we did this, we did a debridement of the synovium, which almost looked like it had a little bit of titanium. We removed this......We then subsequently irrigated, placed the next size bigger poly, dropped the tourniquet and got excellent hemostasis." The Board finds that the October 2005 surgery included a prosthetic replacement of the knee joint, as is required for a 100 percent rating under Diagnostic Code 5055. In this case, the October 2005 operation involved removing the original patella component and replacing it with a new patella component. Accordingly, a 100 percent rating is warranted for one year following the date of the revision surgery, effective October 20, 2005. ORDER An initial increased rating for type II diabetes mellitus is denied. A 100 percent disability rating is granted for prosthesis replacement of the left knee joint for one year following implantation of prosthesis, effective October 20, 2005. REMAND The Board finds that further development is necessary prior to the adjudication of the remaining issues on appeal. The Veteran's most recent VA examination of the left knee and right ankle was performed in June 2014. Since that time, he has essentially reported worsening symptoms. Moreover, the Veteran's representative has argued that prior VA examinations were inadequate. Consequently, a remand is necessary to provide him with a more contemporaneous VA examination to appropriately assess the disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377 (1994). Additionally, the Court has recently reiterated that it is imperative that a VA examiner estimate the additional degree of limitation of motion caused by flare-ups and not decline to do so based on the rationale that such an estimate would require resort to speculation. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), also held that the final sentence of 38 C.F.R. § 4.59 requires that all VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The new examinations must comply with the holdings in Sharp and Correia. Lastly, the Veteran's claim for TDIU is inextricably intertwined with his claims for increased ratings; the Board finds that the issue of the Veteran's entitlement to a TDIU must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected right ankle degenerative arthritis. The claims file should be made available to the examiner and review of the file should be noted in the full requested report. The examiner should record the full history of the right ankle degenerative arthritis, including the Veteran's competent account of his symptoms. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint in question and any paired joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All objective and subjective symptoms should be reported in detail. Please also describe all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner should ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner should estimate the functional loss based on all the evidence of record. The examiner should also provide an opinion as to the range of motion throughout the appeal period (since January 2, 2004) of the right ankle in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with the range of the opposite undamaged joint. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected left knee replacement. The claims file should be made available to the examiner and review of the file should be noted in the full requested report. The examiner should record the full history of the left knee replacement, including the Veteran's competent account of his symptoms. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint in question and any paired joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All objective and subjective symptoms should be reported in detail. Please also describe all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner should ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner should estimate the functional loss based on all the evidence of record. The examiner should also provide an opinion as to the range of motion throughout the appeal period (since January 2, 2004) of the left knee in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with the range of the opposite undamaged joint. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After completing the requested actions and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). 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). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs