Citation Nr: 18148646 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 14-40 921 DATE: November 8, 2018 ORDER Prior to March 17, 2010, entitlement to a rating in excess of 40 percent for a right knee disability, characterized as status post total right knee arthroplasty with degenerative joint disease and surgical scar, previously rated as osteochondroma, right knee (right knee disability), is denied. Prior to March 17, 2010, a separate 10 percent rating, but no more, for lateral instability is granted. From May 1, 2011, entitlement to a rating in excess of 60 percent for a right knee disability is denied. REMANDED Entitlement to a rating of total disability based on individual unemployability (TDIU) prior to October 1, 2009 is remanded. FINDINGS OF FACT 1. Prior to March 17, 2010, the Veteran’s right knee disability was characterized by pain, degenerative changes, and occasional instability and weakness; extension limited to 45 degrees was not shown. 2. Prior to March 17, 2010, the Veteran exhibited slight recurrent lateral instability of the right knee. 3. From May 1, 2011, the Veteran’s right knee disability was characterized by chronic residuals consisting of severe painful motion as well as weakness. CONCLUSIONS OF LAW 1. Prior to March 17, 2010, the criteria for entitlement to the schedular maximum rating for chondroma of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.27, 4.71a, Diagnostic Code 5255-5262. 2. Prior to March 17, 2010, the criteria for a separate 10 percent rating, but no more, for lateral instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.71a, DC 5257. 3. From May 1, 2011, the criteria for entitlement to the schedular maximum rating for status post total knee replacement have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DC) 5003, 5256, 5257, 5260, 5261, 5262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1993 to October 1994. Increased Rating Prior to March 17, 2010, the Veteran received a 40 percent rating for a right knee disability under 38 C.F.R. § 4.71a, DCs 5255 and 5262. On that date, he underwent a total knee replacement, for which he received a temporary 100 percent disability rating, which was reduced to 60 percent, effective May 1, 2011, under DC 5055. He asserts his symptoms are severe enough to merit higher ratings for both periods. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall 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. In cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). From December 26, 2006 to March 17, 2010 Prior to his March 2010 knee replacement, the Veteran’s right knee disability was rated at 40 percent for a right knee chondroma (bone tumor) under Diagnostic Code 5255-5262. Given that chondromas are not mentioned in the Diagnostic Code, the Veteran’s disability is rated by analogy to DC 5262. A 40 percent rating was granted under this DC for nonunion of the tibia and fibula with loose motion requiring a brace. The Veteran claims an increased rating for this period. In the absence of ankylosis (total immobility of a joint due to fusion of the bones), which would merit either a 50 or a 60 percent rating under DC 5256, the Veteran’s only avenue to a rating in excess of 40 percent is showing extension limited to 45 degrees (a 50 percent rating under DC 5261). Here, a measurable range of motion at all times during the period precludes a finding of ankylosis. Moreover, extension was not limited to 45 degrees. Despite the Veteran’s asserted functional limitations, the Veteran did not assert any limitation on extension of the right knee joint during this period. In a December 2006 orthopedic consultation note, a trace effusion as well as hamstrings tender upon palpation were noted. Despite chronic pain and restriction in motion reported in a December 2006 counseling record, the Veteran’s February 2007 VA examiner found that his right knee extension was not limited, even by pain. A non-VA X-ray report dated July 2009 shows severe degenerative change of the knee joint. However, no limitation of extension was reported. As late as November 2009, a surgery note recorded that the Veteran’s extensor mechanism was fully intact. Similarly, January 2010 medical records note daily popping, catching, locking, and pain; again, though, limitation on extension was not. Because neither ankylosis nor a limitation of extension to 45 degrees was found, a rating in excess of 40 percent for the Veteran’s right knee chondroma is not warranted for this period. Finally, in knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Here, a review of the evidence, to include a December 2006 medical record and the Veteran’s February 2007 VA examination, shows persistent, but mild, medial lateral instability of the right knee. Thus, the Board determines that while the Veteran’s current ratings should be maintained, he should be awarded a separate 10 percent rating for slight, but recurrent instability of the right knee. Because the Veteran’s symptoms after his total knee replacement are addressed by his 60 percent rating, this rating is only effective from December 26, 2006 to prior to March 17, 2010. From May 1, 2011 From May 1, 2011, the Veteran’s right knee disability was assigned a rating of 60 percent under 38 C.F.R. §4.71a, DC 5055 (addressing status post knee replacement). A 60 percent rating is warranted when the evidence shows chronic residuals consisting of severe painful motion or weakness in the affected extremity. This is the highest rating allowable under this diagnostic code. Therefore, a schedular rating in excess of 60 percent is not warranted. Moreover, a rating in excess of 60 percent for a knee disability also cannot be assigned, as such a rating would exceed the rating he would have received if his leg were amputated, which is prohibited under VA law. 38 C.F.R. § 4.68. REASONS FOR REMAND Entitlement to a rating of total disability based on individual unemployability (TDIU) prior to October 1, 2009, is remanded. The Veteran’s claim for TDIU prior to October 1, 2009, must be remanded to ensure a complete record upon which to decide the Veteran’s claim. The Board notes that the Veteran is service connected for PTSD, rated at 100 percent disabling, effective October 1, 2009. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). Thus, the issue on appeal is properly characterized. Here however, while the Veteran’s application for TDIU is dated September 2009, his claim is considered part of his application filed in December 2006 for an increased rating for his right knee disability. Therefore, entitlement to TDIU must still be considered for the period prior to October 1, 2009. The matter is REMANDED for the following action: After conducting any development that is deemed warranted, adjudicate the issue of entitlement to TDIU for the period prior to October 1, 2009. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel