Citation Nr: 18151229 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-20 917 DATE: November 16, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for right total knee replacement prior to September 18, 2015 is denied. Entitlement to a disability rating in excess of 40 percent for right total knee replacement prior to July 11, 2017 is granted, resulting in a disability rating of 60 percent beginning September 18, 2015. Entitlement to a disability rating in excess of 60 percent for right total knee replacement from September 18, 2015 is denied. FINDINGS OF FACT 1. Prior to September 18, 2015, the evidence of record does not show evidence of chronic residuals of severe painful motion or weakness, ankylosis in flexion between 10 degrees and 20 degrees, extension limited to 30 to 44 degrees, or nonunion of the tibia and fibula requiring a brace. 2. From September 18, 2015, the evidence of record shows evidence of chronic residuals of severe painful motion or weakness in the right knee. CONCLUSIONS OF LAW 1. Prior to September 18, 2015, the criteria for a rating in excess of 30 percent were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.45, 4.71a, Diagnostic Codes 5055; 5256-5257, 5261-5262 (2017). 2. From September 18, 2015, the criteria for a rating of 60 percent have been met for residuals post right total knee replacement. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.45, 4.71a, Diagnostic Code 5055 (2017). 3. A schedular rating higher than 60 percent for right knee total arthroplasty may not be awarded as a matter of law, and the criteria for referral for extraschedular consideration are not satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.68, 4.71a Diagnostic Code 5055 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Navy from October 1974 until April 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision which granted service connection for right total knee replacement with an evaluation of 30 percent effective February 26, 2015. A review of the record shows that, in an October 2018 Supplemental Statement of the Case (SSOC) the Regional Office (RO) granted the Veteran a disability rating of 40 percent for right total knee replacement effective September 28, 2015 and 60 percent disabling effective July 11, 2017. Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). A Veteran may have separate compensable ratings for a knee injury, to include limitations in its range of motion and a meniscus injury or one that is post-operative. C.F.R. § 4.71a, DCs 5258-5261. Other diagnostic codes provide rating criteria used to evaluate ankylosis, recurrent subluxation or lateral instability, dislocated cartilage, limitation of extension, impairment of the tibia and fibula, and genu recurvatum. 38 C.F.R. § 4.71a, DCs 5262-5263, 5256-5257. Entitlement to a disability rating in excess of 30 percent for right total knee replacement prior to September 18, 2015 is denied. The Veteran contends that he is entitled to an increased rating, in excess of 30 percent, for right total knee replacement. However, he has not met the criteria for an increased rating prior to September 18, 2015. A higher evaluation of 40 percent for ankylosis of the knee requires ankylosis in flexion between 10 degrees and 20 degrees. The evidence of record does not show that the Veteran has experienced any ankylosis of the right knee. Therefore, 40 percent is not warranted for ankylosis. A higher evaluation of 40 percent for limitation of extension requires extension to be limited to 30-44 degrees. In a June 2015 VA examination, there was no limited extension noted on the exam, and the Veteran had full range of motion from 140 degrees to 0 degrees. A higher evaluation of 40 percent for tibia and fibula impairment requires nonunion of the tibia and fibula with loose motion which requires a brace. The evidence does not show a nonunion of the tibia and fibula and need for a brace until September 18, 2015. Prior to this date, an increased rating is not warranted. A higher evaluation of 60 percent for knee replacement requires post-prosthesis placement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. The evidence does not show severe pain or weakness prior to September 18, 2015. In the June 2015 VA examination, the Veteran reported minimal symptoms. In conclusion, a rating in excess of 30 percent is not warranted prior to September 18, 2015. Entitlement to a disability rating in excess of 40 percent for right total knee replacement prior to July 11, 2017 is granted, resulting in a disability rating of 60 percent, beginning September 18, 2015. The Veteran contends that he is entitled to an increased rating, in excess of 40 percent, for right total knee replacement prior to July 11, 2017. The evidence shows that a disability rating of 60 for right total knee replacement is warranted. The Veteran sought treatment from a private provider, Dr. M.M. on September 18, 2015 for progressing right knee pain and swelling. X-rays noted potential loosening, and the Dr. ordered a bone scan. This scan confirmed that the Veteran’s right knee was loosening and required a brace. The Veteran sought treatment for the continued pain. A July 2017 VA examination explicitly noted residuals of severe painful motion or weakness. The Veteran reported progressive pain, which had been previously reported in September 2015 to Dr. M.M.. The criteria for a disability rating of 60 percent were met on September 18, 2015. Accordingly, an increased rating is warranted. Entitlement to a disability rating in excess of 60 percent for right total knee replacement from September 18, 2015 is denied. The Veteran’s right knee total arthroplasty is rated under Diagnostic Code (DC) 5055, which provides, in part, that a 100 percent rating is assigned for one year following implantation of prosthesis. 38 C.F.R. § 4.71a. Thereafter, the maximum rating available under DC 5055 is a 60 percent rating, which is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. As more than a year has passed since the Veteran’s right knee arthroplasty, a rating higher than 60 percent is not available under DC 5055. Further, a rating higher than 60 percent is not available under the other diagnostic codes pertaining to disability of the knee. 38 C.F.R. § 4.71a, DC’s 5256-5263. Generally, disability ratings are determined by rating the extent to which a service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in VA’s Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In exceptional cases where the criteria in VA’s Rating Schedule criteria are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. An extraschedular rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as governing norms. Third, if the rating schedule is inadequate to rate a veteran’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). The symptoms associate with the Veteran’s right knee, chronic residuals consisting of severe painful motion or weakness, are contemplated by the rating criteria and the assigned ratings, and the medical evidence fails to show anything unique or unusual about this disability that would render the schedular criteria inadequate. Referral for consideration of an extraschedular rating is not warranted. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. N. Fournier, Law Clerk