Citation Nr: 18153564 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-40 851 DATE: November 28, 2018 ORDER Entitlement to a temporary total 100 percent rating from August 1, 2010 to May 16, 2011, for partial right knee replacement, is granted. Entitlement to a 30 percent rating beginning May 17, 2011, for partial right knee replacement, is granted. Entitlement to a rating in excess of 30 percent beginning June 1, 2013, for total right knee replacement, is denied. FINDINGS OF FACT 1. On April 16, 2010, the Veteran underwent a partial knee replacement of his service-connected right knee disability. 2. The Veteran’s partial right knee replacement warranted a temporary total rating from April 16, 2010 to May 16, 2011 for convalescence, and his total right knee replacement warranted a temporary total rating from April 2, 2012 to June 1, 2013 for convalescence. 3. The Veteran did not exhibit chronic residuals consisting of severe painful motion or weakness in the right knee after May 16, 2011, or after June 1, 2013 after his right knee replacement surgeries. CONCLUSIONS OF LAW 1. The criteria for a temporary 100 percent disability rating for partial right knee replacement, for the period August 1, 2010 to May 16, 2011 have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a Diagnostic Code 5055 (2017). 2. The criteria for a 30 percent rating effective May 17, 2011 to April 2, 2012, for partial right knee replacement, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a Diagnostic Code 5055 (2017). 3. The criteria for a rating greater than 30 percent as of June 1, 2013, for total right knee replacement, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a Diagnostic Code 5055 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1975 to April 1979. Entitlement to a rating greater than 10 percent from August 1, 2010 to April 2, 2012; and greater than 30 percent from June 1, 2013, for right knee replacement. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). “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). If two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Period beginning August 1, 2010 to April 2, 2012 The Veteran is seeking an increased rating for his right knee disability. As an initial matter, the Board notes that the Veteran was awarded 100 percent temporary total ratings effective April 16, 2010 to August 1, 2010, and from April 2, 2012 until June 1, 2013. Given that the Veteran was in receipt of the maximum rating, the Board need not discuss these particular rating periods. Factual background shows that the Veteran was assigned a 100 percent temporary total rating for convalescence due to surgical treatment effective April 16, 2010. A 10 percent rating was assigned effective August 1, 2010. In its April 2011 rating decision, the RO determined that, based on a statement from the Veteran’s physician, a period of three to six months was needed for convalescence. Additionally, in the August 2016 SOC, the RO explained that the Veteran was not entitled to a continuation of his temporary total rating as he underwent a partial knee replacement as opposed to a total knee replacement. The Veteran contends that his assigned temporary total rating, effective April 16, 2010, should have continued for a duration of 13 months. After reviewing the evidence of record, the Board agrees with the Veteran’s contentions and finds that a temporary total rating is warranted for the period beginning August 1, 2010, with a subsequent minimum 30 percent rating. Specifically, the Veteran’s assigned temporary total rating effective April 16, 2010 should have continued for a duration of 13 months until May 16, 2011, with a subsequent 30 percent rating effective May 17, 2011. The Board notes that the Veteran underwent partial right knee replacement on April 16, 2010. Temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, replacement of either knee joint warrants a 100 percent evaluation for a one-year period following implantation of the prosthesis. Thereafter, a 60 percent evaluation is warranted if there are chronic residuals consisting of severely painful motion or severe weakness in the affected extremity. The mandatory minimum rating of 30 percent is warranted with intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to Codes 5256, 5261 or 5262. The 100 percent rating for one year following implantation of prosthesis will commence after the initial grant of a one-month total rating following hospital discharge to be assigned under 38 C.F.R. § 4.30. By its very terms, Code 5055 applies to prosthesis of the knee and on its face, does not differentiate between total and partial knee replacements. See 38 C.F.R. § 4.71a, Code 5055. In Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016), the Federal Circuit held that the provisions of Code 5055 were applicable to partial knee replacements. Therefore, given the above, the Veteran was entitled to a temporary total 100 percent rating for partial right knee replacement for the regulatory period under Code 5055 beginning April 16, 2010 until May 16, 2011; and an assignment of the minimum 30 percent rating after a knee replacement, effective May 17, 2011 (the day after the expiration of the temporary total 100 percent rating). The Board recognizes that the Veteran subsequently had a total right knee replacement on April 2, 2012, with a pre-operative diagnosis noting a “failed right medial unicompartmental knee arthroplasty secondary to aseptic loosening;” however, the Veteran’s right knee more nearly approximated the criteria for the minimum 30 percent rating, post-surgery, as the evidence does not show any complaints of pain or otherwise following his April 2010 knee surgery until February 2012, despite presenting for several medical visits. Additionally, aside from the reports of pain reported in February 2012, and as noted in his subsequent April 2012 total knee replacement surgical report, there is no other evidence showing ankylosis, limitation in motion, or that the Veteran had chronic residuals consisting of painful motion or weakness in the right knee following his April 2010 surgery. As such, the Board finds a temporary total rating is warranted for the period beginning August 1, 2010 until May 16, 2011; and a minimum 30 percent rating is warranted as of May 17, 2011 to April 2, 2012. Accordingly, the claim is granted. Period beginning June 1, 2013 Concerning the period beginning June 1, 2013, the Veteran is not entitled to a rating greater than the 30 percent minimum rating already assigned. In his September 2013 VA examination, range of motion (ROM) for the Veteran’s right knee was limited to 95 degrees flexion and 5 degrees extension, with limitation in ROM due to repetitive use. The examiner noted functional loss due to less movement, weakened movement, excess fatigability, incoordination, pain on movement, instability, and disturbance of locomotion, and that the right knee exhibits instability and tenderness or pain on palpation. However, the examiner found no residuals to the Veteran’s right knee surgery, and estimated a 10 to 15 degrees loss in ROM during pain on use or flare-ups. The Board notes that when considering the Veteran’s loss in ROM under Diagnostic Code 5261, the Veteran would be entitled to a 30 percent rating. Furthermore, functional loss has already been contemplated in the Veteran’s assigned 30 percent rating. Moreover, a June 2015 primary care note showed no significant changes to the Veteran’s knee. Therefore, as the evidence does not support a rating greater than the assigned 30 percent minimum rating for the period beginning June 1, 2013, the claim for a rating greater than 30 percent for the period beginning June 1, 2013 is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel