Citation Nr: 18156226 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-33 879 DATE: December 7, 2018 ORDER A rating of 100 percent from December 26, 2013, to December 31, 2014, and 30 percent afterwards, for residuals from total right hip replacement surgery is granted. A total disability rating based on individual unemployability is granted. REMANDED Whether reduction of the disability rating for left knee instability from 20 percent to 10 percent, effective November 7, 2013, was proper. Whether reduction of the disability rating for right knee instability from 20 percent to 10 percent, effective November 7, 2013, was proper. Entitlement to a rating in excess of 10 percent for left knee arthritis. Entitlement to a rating in excess of 10 percent for right knee arthritis. Entitlement to a rating in excess of 10 percent for a left hip disability. FINDINGS OF FACT 1. The Veteran underwent total right hip replacement surgery (right hip disability), on December 26, 2013, within one year of his increased rating claim. 2. Beginning January 1, 2014, the Veteran experiences residuals from his right hip disability, but moderately severe residuals of weakness, pain, or limitation of motion have not been shown. 3. The evidence of record makes it at least as likely as not that the Veteran’s service connected disabilities are of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating from December 26, 2013, through January 1, 2015, and a 30 percent rating afterwards, for a right hip disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5054. 2. The criteria for a total disability rating based on individual unemployability (TDIU) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Air Force from December 1971 to January 1975. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In October 2014, the Veteran filed his increased rating claim for his right hip disability, which was denied by a February 2015 rating decision. He asserts that he is entitled to a higher rating. The Veteran’s left hip disability is evaluated under Diagnostic Code 5054. He was assigned a 100 percent rating from March 1, 2014, and assigned a 30 percent rating on March 1, 2014. The Veteran’s right hip disability is evaluated under Diagnostic Code 5251 and assigned a 10 percent rating effective January 5, 2011. The Board notes that the RO has apparently reversed the descriptions of the Veteran’s right and left hip disabilities. Diagnostic Code 5054 evaluates hip replacement. A 100 percent rating is assigned for the year following implantation of the prosthesis. Following implantation of the prosthesis, a 30 percent rating is the minimum rating that is assigned. A 50 percent rating is assigned for moderately severe residuals of weakness, pain, or limitation of motion. A 70 percent rating is assigned for markedly severe residual weakness, pain, or limitation of motion. A 90 percent rating is assigned for painful motion or weakness such as to require the use of crutches. The Veteran’s treatment records show that he underwent total right hip replacement surgery on December 26, 2013. In September 2016, the Veteran was afforded a VA examination. He reported that he continued to have pain and was unable to bend, stoop, or sit in once place without moving. On examination, he had normal range of motion of his right hip. Repetitive use testing resulted in no additional loss of function or range of motion in either hip. The examiner reported that the Veteran’s bilateral hip disabilities interfered with sitting and standing. The Veteran retained normal 5/5 strength with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis, malunion or nonunion of the femur, or a flail hip joint. The examiner indicated that the Veteran did not have residuals from his total right hip joint replacement surgery. In January 2018, the Veteran was afforded a VA examination. He reported that his right hip disability had worsened. He reported having problems walking, climbing stairs, kneeling, and pushing. He reported having flare-up that resulted in pain and stiffness. On examination, he demonstrated right hip flexion to 115 degrees, normal extension to 30 degrees, normal abduction to 45 degrees, normal adduction to 25 degrees, normal internal rotation to 40 degrees, and external rotation to 45 degrees. The examiner indicated that pain was noted on examination and caused functional loss. The examiner indicated that the Veteran had pain with weight bearing. The examiner reported that the Veteran had pain with palpation of the hip joint. Repetitive use resulted in no additional loss of function or range of motion in either hip. The examiner indicated that the examination was being conducted during a flare-up, but pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional ability with flare-ups. The Veteran retained normal strength with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis, malunion or nonunion of the femur, or a flail hip joint. The examiner reported that the Veteran’s residuals from his total right hip joint replacement surgery were pain with decreased range of motion. Having reviewed the evidence of record, the Board concludes that the Veteran underwent total right hip replacement surgery on December 26, 2013. The Veteran filed his increased rating claim on October 24, 2014. An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1), (2). As such, the Veteran meets the criteria for a 100 percent rating under Diagnostic Code 5054 from December 26, 2013, through January 1, 2015, for his right hip disability. Beginning on January 1, 2015, the Veteran meets the criteria for a 30 percent rating, the minimum rating for a hip replacement. At both VA examinations, the examiners did not indicate that the Veteran’s right hip disability resulted in moderately severe residuals or greater, which would be consistent with a rating in excess of 30 percent. Accordingly, a schedular rating of 100 percent from December 26, 2013, through January 1, 2015, and a schedular rating of 30 percent afterwards is warranted for the Veteran’s right hip disability, and his claim is granted. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. In this case, the Veteran submitted his claim for a TDIU in October 2014, which was denied by a February 2015 rating decision. The Veteran meets the schedular criteria for a TDIU, outside periods of convalescence, as of March 1, 2015. The Veteran is presently service connected for a right hip disability rated at 30 percent, a left hip disability rated at 30 percent, a lumbar spine disability rated at 20 percent, right lower extremity radiculopathy rated at 10 percent, left knee arthritis rated at 10 percent, left knee instability rated at 10 percent, right knee arthritis rated at 10 percent, and right knee instability rated at 10 percent. His right hip disability, left knee arthritis, and lumbar spine disability are due to his right knee arthritis. Accordingly, these conditions are considered a single disability for TDIU purposes as they share a common etiology. See 38 C.F.R. § 4.16 (a). These disabilities combine for a 60 percent disability rating. 38 C.F.R. § 4.25. As such, the Veteran meets the schedular criteria for a TDIU as he has a single disability ratable at 40 percent or more and a combined rating of 70 percent or more. In an October 2014 VA Form 21-8940 – Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked in 2014 as a substitute teacher. He reported that his hip and knee disabilities prevented him from securing or following any substantial gainful occupation. In September 2015, a VA examiner reviewed the Veteran’s claims file, interviewed the Veteran, and conducted an examination. The examiner reported that the Veteran’s lumbar spine disability resulted in difficulty with duties involving prolonged standing, twisting, bending, extensive walking, or heavy lifting. In September 2016, a VA examiner reviewed the Veteran’s claims file, interviewed the Veteran, and conducted an examination. The examiner reported that the Veteran’s bilateral hip disabilities prevented him from prolonged walking, standing, or sitting. In January 2017, a VA examiner reviewed the Veteran’s claims file, interviewed the Veteran, and conducted an examination. The examiner reported that the Veteran’s lumbar spine disability limited the Veteran to walking one to two miles at a time, standing 30 to 40 minutes at a time, sitting 60 minutes at a time, and lifting limited to 40 pounds occasionally. In January 2018, a VA examiner reviewed the Veteran’s claims file, interviewed the Veteran, and conducted an examination. The examiner reported that the Veteran’s bilateral hip and knee disabilities resulted in a mild impact with prolonged standing and walking. The examiner reported that the Veteran had a risk to employment due to being on routine narcotics twice daily that could impair his functioning and pose a safety hazard. The evidence of record establishes that the Veteran’s service connected bilateral hip and knee disabilities, his lumbar spine disability, and his right lower extremity radiculopathy clearly prevent him from engaging in substantial gainful activity as his medications could impair his functioning and pose a safety hazard. Accordingly, the Veteran is not able to obtain and sustain substantial gainful employment on account of his service connected disabilities. As such, the Board concludes that the evidence for and against a TDIU is at least in relative equipoise, and given this conclusion, the Board will resolve any reasonable doubt in the Veteran’s behalf, and hold that a TDIU is warranted. As such, the Veteran’s claim is granted. REASONS FOR REMAND Regarding the Veteran’s knee disabilities, a November 2013 rating decision reduced the Veteran’s ratings for left knee instability and right knee instability. The Veteran filed a notice of disagreement with the reductions in December 2013. The RO issued a statement of the case in December 2013; however, the RO only addressed the increased rating claims and did not address whether the reductions were proper. As such, a remand is necessary to issue a supplemental statement of the case regarding whether the reductions for the Veteran’s left knee instability and right knee instability were proper. The increased rating claims for the Veteran’s bilateral knee arthritis are inextricably intertwined with the instability claims, so they will also be remanded. Regarding the Veteran’s increased rating for a left hip disability, the Veteran’s medical records show that he underwent total left hip replacement surgery in March 2014. However, the operative report is not contained in the claims file. A remand is necessary in order to obtain the outstanding left total hip replacement operative report. Afterwards, the RO should consider the application of Diagnostic Code 5054 regarding his left total hip replacement surgery. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records regarding the Veteran’s bilateral knee disabilities and his left hip disability, specifically, the total left hip replacement surgery in March 2014. 2. After the above development and any additionally indicated development has been completed, readjudicate the issues on appeal, including the issues of the whether the reductions of the Veteran’s bilateral knee instability were proper and the increased rating for the Veteran’s left hip disability. If the benefits sought are not fully granted, send the Veteran and his representative a Supplemental Statement of the Case and provide the Veteran with an opportunity to respond. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel