Citation Nr: 18149953 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-31 415A DATE: November 14, 2018 ORDER Vacatur of a July 26, 2018, decision of the Board of Veterans’ Appeals (Board) is warranted. A 100 percent disability rating under Diagnostic Code 5055 (reassigned from Diagnostic Code 5003-5260) for right knee osteoarthritis/degenerative joint disease, status post hemiarthroplasty, from July 6, 2012 through August 31, 2013 is granted. Beginning September 1, 2013, a 30 percent rating under Diagnostic Code 5055 (reassigned from Diagnostic Code 5003-5260) for right knee osteoarthritis/degenerative joint disease, status post hemiarthroplasty is granted. FINDINGS OF FACT 1. In a July 26, 2018 decision, the Board granted a 100 percent disability rating under Diagnostic Code 5055 for right knee osteoarthritis/degenerative joint disease, status post hemiarthroplasty, from July 6, 2012 through July 31, 2013 and a 30 percent rating thereafter. 2. The Veteran is entitled to a one-month period of convalescence under 38 C.F.R. § 4.30 following hospital discharge, prior to the implementation of the one-year period of convalescence under Diagnostic Code 5055. That was not accounted for in the prior Board decision. 3. The Veteran underwent right partial knee replacement surgeries in July 2012. 4. The evidence of record demonstrates that the Veteran has bouts of pain and weakness, with full range of motion in his right knee post hemiarthroplasty. CONCLUSIONS OF LAW 1. The criteria for vacatur of the July 26, 2018 Board decision are met. 38 U.S.C. § 7104 (2012); 38 C.R.F. § 20.904 (2017). 2. The criteria for a 100 percent disability rating under Diagnostic Code 5055 (reassigned from Diagnostic Code 5003-5260) based on partial knee replacement of the service-connected right knee disability for a period from July 6, 2012 to August 31, 2013, have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Code 5055 (2017). 3. The criteria for a 30 percent rating for status post residuals of a partial knee replacement have been met, effective September 1, 2013. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Code 5055 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1982 to December 2004.   Vacatur The Board may vacate an appellate decision at any time upon request of the Veteran or his or her representative, or on the Board’s own motion, when an Veteran has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R § 20.904 (2017). Review of the Veteran’s claims file revealed that the Veteran is entitled to a one-month period of convalescence under 38 C.F.R. § 4.30 following hospital discharge, prior to the implementation of the one-year period of convalescence under Diagnostic Code 5055. The Board determines that the dates assigned in the July 26, 2018 rating decision were incorrect. Accordingly, the July 26, 2018, Board decision is vacated. Entitlement to an increased rating in excess of 10 percent for right knee osteoarthritis/degenerative joint disease, status post hemiarthroplasty The Veteran seeks a higher disability rating for his service-connected right knee disability. Specifically, the Veteran contends that his partial right knee replacement deserves a higher, 30 percent rating under Diagnostic Code 5055. Disability evaluations are determined by the application of the facts presented 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, as far as can be practicably determined, 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. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. The Veteran underwent a partial right knee replacement in July 2012. In a September 2012 rating decision, the Board granted a temporary 100 percent rating from July 6, 2012 continuing through September 1, 2012. Thereafter, a 10 percent rating was assigned under Diagnostic Code 5260-5003. The Veteran filed a notice of disagreement with the September 2012 rating decision, contending that his subsequent rating should be a minimum 30 percent rating under Diagnostic Code 5055, rather than the 10 percent assigned under Diagnostic Code 5260-5003. The Veteran also contended that his temporary 100 percent rating needed to be extended past September 1, 2012. In an August 2014 rating decision, the RO extended his temporary 100 percent rating to October 1, 2012 and assigned a 10 percent rating thereafter. In his October 2014 substantive appeal (VA Form 9), the Veteran argued that an incorrect diagnostic code was used in his rating decision and that Diagnostic Code 5055 is applicable for a partial knee replacement. The Board observes further that on July 16, 2015, the Secretary published a final rule in the Federal Register that interprets/clarifies VA's interpretation of Diagnostic Codes 5051 through 5056 that a 100-percent evaluation will be in place for a period of one year when the total joint, rather than the partial joint, has been replaced by a prosthetic implant. See 80 Fed. Reg. 42040 (July 16, 2015). In May 2016, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that Diagnostic Code 5055 applies to partial knee replacement. See Hudgens v. McDonald, 823 F.3d 630, 637 (Fed. Cir. 2016). The Federal Circuit addressed VA's interpretation of prosthetic replacement of joints and noted, "We have the authority to decide all relevant questions of law and can set aside a regulation or an interpretation of a regulation relied upon by the Court of Appeals for Veterans Claims when we find it to be arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or without observance of procedure required by law." The Federal Circuit declined to give deference to the VA's interpretation of Diagnostic Code 5055 in the Hudgens case and held that the provisions of Diagnostic Code 5055 were applicable to partial knee replacements. Under Diagnostic Code 5055, for one year following implantation of a knee prosthesis for service-connected knee disability, a 100 percent rating is assigned. 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. Higher ratings may also be 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, Diagnostic Codes 5256, 5261, or 5262. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. Therefore, the Board finds that the Veteran is entitled to a temporary 100 percent rating from July 6, 2012 to August 31, 2013 and a 30 percent rating, effective September 1, 2013. His claim was pending, but not finally adjudicated by July 16, 2015, and as such the holding of the Hudgens case is for application. The Board has considered whether a higher 60 percent rating is warranted; however, the Board finds the Veteran’s symptomatology does not meet the criteria for the higher evaluation. The Veteran was afforded a VA examination in June 2014. The examiner noted that his knee is stable although the Veteran reported periotic pain. The Veteran had full range of motion with no objective evidence of pain and the Veteran denied flare-ups. The Veteran was able to perform repetitive use testing with no limitations and the Veteran denied functional impairment. Stability testing was normal. At the June 2018 Board hearing, the Veteran testified that he still has bouts of weakness, pain, limitation of motion, and inflammation but that his knee is “fairly solid” and that he is able to climb stairs, walk long distances, and discontinue use of a cane. Therefore, the Board finds that from September 1, 2013, the minimum 30 percent rating under Diagnostic Code 5055 is warranted. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Siesser, Counsel