Citation Nr: 18142811 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 13-05 883 DATE: October 17, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for residuals of left total knee replacement (TKR) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is remanded. FINDING OF FACT The Veteran’s residuals of left TKR have not been shown to manifest as chronic residuals of TKR consisting of severe painful motion or weakness; ankylosis; extension limited to 30 degrees; or impairment of the tibia and fibula. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for residuals of left TKR have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a; Diagnostic Code (DC) 5055 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1975 to August 1995. These matters are on appeal from July 2011 and January 2013 rating decisions and were previously remanded by the Board of Veterans' Appeals (Board) in November 2016. As an initial matter, the Veteran and his representative alleged in an August 2018 Appellate Brief that the Veteran’s January 2017 VA examination was inadequate because VA did not comply with the Board’s November 2016 remand directives. Specifically, the January 2017 examination was performed by a nurse practitioner. Review of the Board’s November 2016 remand directives do not indicate the VA examination was to be conducted by a specific medical specialist. On the contrary, the fact that the examiner was a nurse practitioner does not render the examiner unqualified or render the examination inadequate. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (VA satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician’s assistant). Here, the Board is entitled to presume the competence of a VA examiner, and finds the nurse practitioner who completed the January 2017 VA examination to be competent to render a medical opinion. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Accordingly, the Board finds the January 2017 VA examination to be adequate and the November 2016 remand directives to be substantially complied with by the RO. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The basis of disability ratings 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 (2018). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2018). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating in excess of 30 percent for residuals of left TKR The Veteran asserts that his service-connected residuals of left TKR warrant a higher disability rating. The Veteran’s residuals of left TKR are currently rated as 30 percent disabling under 38 C.F.R. § 4.71a, DC 5055. Under this code, a 100 percent rating is assigned for one year following implantation of knee prosthesis. Thereafter, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity; or, a minimum 30 percent rating is assigned. When there are intermediate degrees of residual weakness, pain, or limitation of motion, these intermediate residuals are to be rated by analogy under 38 C.F.R. § 4.71a, DCs 5256, 5261, or 5262. Under DC 5256, a 40 percent rating is assigned for ankylosis of the knee with flexion between 10 and 20 degrees, a 50 percent rating is assigned for ankylosis of the knee with flexion between 20 and 45 degrees, and a 60 percent rating is assigned for ankylosis of the knee with flexion at an angle of 45 degrees or more. Under DC 5261, a 40 percent rating is assigned for leg limitation with extensions limited to 30 degrees, and a 50 percent rating is assigned for leg limitation with extension limited to 45 degrees. Finally, under DC 5262, a 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. The words slight,” moderate,” and severe” are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decision is equitable and just.” 38 C.F.R. § 4.6. Upon review of the record, the Board finds that a disability rating in excess of 30 percent for residuals of the Veteran’s left TKR is not warranted under DCs 5055, 5256, 5261, or 5262. Turning first to whether a 60 percent rating is warranted under DC 5055, the evidence does not demonstrate severe painful motion in the Veteran’s left knee. During the Veteran’s November 2011 VA examination, the Veteran reported a gradual onset of mild pain in his left knee post TKR in 2010, however no flare-ups were reported. Left knee flexion was to 95 degrees, and the Veteran was able to perform three repetitions with the same degree of flexion. No additional limitation in range of motion (ROM) was noted following repetitive-use testing, however functional loss was noted to include less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Muscle strength testing was 4/5 for flexion and 4/5 for extension. Instability testing revealed normal results. The Veteran was afforded another VA examination for his left knee in January 2013. Here, the Veteran reported worsening in his left knee symptoms, however no flare-ups were reported. Left knee flexion was to 90 degrees with no objective evidence of painful motion. Again, the Veteran was able to perform repetitive-use testing with the same degree of flexion. Muscle strength testing revealed 5/5 for flexion and 5/5 for extension. No additional limitation in ROM was noted following repetitive-use testing, however functional loss was noted to include less movement than normal, pain on movement, and swelling in the left knee. Instability testing revealed normal results. The Veteran underwent an additional VA examination in January 2017. He reported intermittent left knee instability, however no flare-ups were reported. Left knee flexion was to 132 degrees. The Veteran was able to perform repetitive-use testing with no additional functional loss or ROM loss. Muscle strength testing revealed 5/5 for flexion and 5/5 for extension. No ankylosis was found, and left knee joint instability tests were normal. Imaging studies conducted and reviewed by a VA radiologist noted no evidence of prosthetic loosening or any para-articular pathology. The VA examiner stated he did not detect any left knee instability upon examination. He indicated that quad atrophy was present in the Veteran’s left lower extremity, which may result in the mild weakness which the Veteran perceived as instability. Further, post-service VA and private treatment records reveal left knee pain and symptoms of mild to no more than moderate severity. Specifically, between 2013 and 2017, the Veteran’s left knee flexion was similar to those results found in his 2011, 2013, and 2017 VA examinations. Collectively, the objective testing results from these VA examinations, coupled with the Veteran’s post-service treatment records, do not show left knee symptoms that more nearly approximate severe painful motion or weakness. Therefore, the Board finds that the Veteran is not entitled to a rating in excess of 30 percent for residuals of his left TKR under DC 5055. The Board has also considered whether a disability rating in excess of 30 percent is warranted for residuals of the Veteran’s left TKR pursuant to DCs 5256, 5261, and 5262. 38 C.F.R. § 4.71a. Regarding DC 5256, the evidence does not reflect that the Veteran experiences left knee ankylosis. The Veteran’s post-service treatment records are silent for a finding of left knee ankylosis, as are the Veteran’s 2011, 2013, and 2017 VA examination reports. Thus, a rating in excess of 30 percent under DC 5256 is not warranted. Regarding DC 5261, a rating in excess of 30 percent is warranted when extension is limited to 30 degrees. Here, ROM for the Veteran’s left knee revealed extension is limited to, at most, 8 degrees, evidenced in his January 2017 VA examination report. Prior VA examinations in 2011 and 2013 reflect extension ending at 0 degrees. Therefore, a rating in excess of 30 percent under DC 5261 is not warranted. Lastly, the evidence of record does not reflect the Veteran experiences left tibia and fibula impairment. For this reason, a higher disability rating under DC 5262 is not warranted. Accordingly, as the preponderance of the evidence is against the claim for a higher disability rating, the Board finds that the claim of entitlement to a rating in excess of 30 percent for residuals of left TKR must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TDIU, to include on extraschedular basis, is remanded. The Board finds that a remand for referral of the Veteran’s claim to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis is warranted. The Veteran’s service-connected disabilities include residuals of left TKR, rated 30 percent; tinnitus, rated 10 percent; and bilateral hearing loss, rated noncompensable. His combined service-connected disability rating is currently 40 percent, which does not meet the minimum rating requirements of § 4.16(a) for a TDIU rating on a schedular basis. Review of the evidence, however, shows the Veteran was employed for approximately 20 years as a flight attendant, both in service and after, until 2010 when he was let go from employment due to missing work as a result of his left TKR. He has a two-year college education with no other specialized training. His duties as a flight attendant required being on his feet for extended periods of time, to include walking and standing, as well as lifting items between 10 and 50 pounds. The January 2013 VA examiner found the Veteran’s left knee disability would prevent physical employment, not sedentary, noting that his standing and walking is limited to 1 to 2 hours at a time and that the Veteran is unable to climb more than one flight of stairs. The January 2017 VA examiner opined that given the Veteran’s reports of instability, he may have difficulty performing a job that entailed working outdoors, but that sedentary employment would not be precluded. The Board notes that sedentary jobs, however, often require a certain amount of walking and standing and are not entirely performed in a seated position. Here, the Veteran has reported pain in his left knee as well as difficulty walking, standing, and getting up from a seated position. Given that the evidence reflects that the Veteran may have experienced difficulty obtaining and maintaining employment consistent with his educational and work background due to his service-connected disabilities after his left TKR in 2010, and that the Board is precluded from awarding an extraschedular TDIU in the first instance, on remand, the Veteran’s claim must be referred to VA’s Director of Compensation Service, for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: 1. Refer the Veteran’s claim for entitlement to an extraschedular TDIU to the Director of Compensation Service, for consideration under 38 C.F.R. § 4.16(b). A copy of the Director’s decision on this claim must be included in the electronic claims file. The Director is asked to consider whether the Veteran’s service-connected disabilities warrant an extraschedular TDIU. 2. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Houle, Associate Counsel