Citation Nr: 18159549 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-09 584 DATE: December 19, 2018 ORDER 1. From September 30, 2011 to April 3, 2017, a rating in excess of 30 percent for left total knee replacement is denied. 2. Since April 4, 2017, a rating of 60 percent for left total knee replacement is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. 3. From June 1, 2013 to April 3, 2017, a rating in excess of 30 percent for right total knee replacement is denied. 4. Since April 4, 2017, a 60 percent rating for right total knee replacement is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. 5. A total disability rating based on individual unemployability (TDIU) is granted effective April 5, 2012, subject to the applicable laws and regulations governing the payment of monetary benefits. REMANDED 1. An initial rating in excess of 20 percent for left knee degenerative joint disease prior to September 30, 2011, is remanded. 2. An initial rating in excess of 10 percent for right knee degenerative joint disease prior to April 5, 2012 is remanded. 3. A TDIU prior to April 5, 2012 is remanded. FINDINGS OF FACT 1. From September 30, 2011 to April 3, 2017, the Veteran’s left total knee replacement resulted in intermediate degrees of residual weakness, pain or limitation of motion, but not chronic residuals consisting of severe painful motion or weakness in the affected extremity. 2. Since April 4, 2017, the Veteran’s left total knee replacement has resulted in chronic residuals consisting of severe painful motion or weakness in the affected extremity. 3. From June 1, 2013 to April 3, 2017, the Veteran’s right total knee replacement resulted in intermediate degrees of residual weakness, pain or limitation of motion, but not chronic residuals consisting of severe painful motion or weakness in the affected extremity. 4. Since April 4, 2017, the Veteran’s right total knee replacement has resulted in chronic residuals consisting of severe painful motion or weakness in the affected extremity. 5. Since at least April 5, 2012, the Veteran has been precluded from securing and following substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. From September 30, 2011 to April 3, 2017, the criteria for a rating in excess of 30 percent for left total knee replacement were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055. 2. Since April 4, 2017, the criteria for a 60 percent rating, but not higher, for left total knee replacement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5055. 3. From June 1, 2013 to April 3, 2017, the criteria for a rating in excess of 30 percent rating for right total knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5055. 4. Since April 4, 2017, the criteria for a 60 percent rating, but not higher, for right total knee replacement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5055. 5. Since at least April 5, 2012, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1955 to November 1957. The case is on appeal from January 2011 and May 2013 rating decisions. Most recently, the Board remanded the claims on appeal for additional development in August 2017. Thereafter, in a June 2018 rating decision, the RO granted the Veteran 60 percent ratings for his right knee status post total replacement and left knee status post total replacement as of October 12, 2017. As the Veteran is presumed to be seeking the maximum available benefit for a disability, the entirety of the claim remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). The June 2018 rating decision also granted service connection for bilateral knee scars as of January 5, 2016, with a noncompensable rating. However, the Veteran has not yet filed a notice of disagreement (NOD) in regard to the assigned rating for his knee scars. 38 C.F.R. § 20.201. The Board notes that additional evidence was added to the file by the RO subsequent to the most recent supplemental statement of the case issued in June 2018. As the evidence is not pertinent to the claim on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). In addition, in October 2018, the Veteran submitted additional evidence. Waiver of RO consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Although the Board is remanding other claims for additional development, remand is not necessary for the issues decided herein, as the remanded development would not be relevant to the claims decided. See 38 C.F.R. § 3.159(d). I. Increased Rating 1. Entitlement to a rating in excess of 30 percent from September 30, 2011 to October 11, 2017, and in excess of 60 percent thereafter, for left total knee replacement. 2. Entitlement to a rating in excess of 30 percent from April 5, 2012 to October 11, 2017, and in excess of 60 percent thereafter, exclusive of the period of a temporary total rating from April 5, 2012 to May 31, 2013, for right total knee replacement. Rating Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. During the relevant time periods, the Veteran’s right and left total knee replacements are evaluated under 38 C.F.R. § 4.71a, DC 5055. Under DC 5055, a 100 percent evaluation is assigned for prosthetic replacement of the knee joint for one year following implantation of prosthesis. The minimum rating for this disability is 30 percent based on intermediate degrees of residual weakness, pain or limitation of motion, rated by analogy to DCs 5256, 5261, or 5262. Outside periods of temporary total ratings, the maximum rating under DC 5055 is 60 percent based on chronic residuals consisting of severe painful motion or weakness in the extremity. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is “factually ascertainable,” all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Where 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Left Knee Rating The Veteran contends that he should have a higher rating for his left total knee replacement. In this regard, in an October 2018 correspondence, he reported that his left knee replacement has failed and that he can only walk with the aid of a cane or walker. Upon review of the evidence, the Board find that a 60 percent rating for the Veteran’s left knee total replacement is warranted as of April 4, 2017, but not earlier. In this regard, the January 2016 examiner found that the Veteran experienced some left knee reduced range of motion and strength, but did not find the presence of crepitus or instability. The examiner concluded that the Veteran’s left knee replacement resulted in intermediate degrees of residual weakness, pain, or limitation of motion. In addition, the Veteran’s VA treatment records prior to April 4, 2017, indicate that he was experiencing moderate left knee impairment, but not severe painful motion or weakness. However, the October 2017 examination shows that the Veteran experiences severe left knee symptomatology. In addition, during VA treatment on April 4, 2017, the Veteran competently and credibly reported experiencing severe left knee symptoms. Therefore, the evidence indicates that the Veteran experienced severe left knee impairment as of such date. See Swain, 27 Vet. App. at 219. The Board has considered whether it may be appropriate to rate the Veteran’s left knee disability under other DCs. However, the provisions of 38 C.F.R. § 4.14 prohibit the evaluation of the same disability under various diagnoses, and provide that the evaluation of the same manifestations under different diagnoses is to be avoided. Separate evaluations are, however, available when none of the manifestations of the disabilities at issue overlap. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As DC 5055 contemplates all residuals up to the 30 percent level of impairment, only DCs 5256, 5261, or 5262 are potentially applicable for a separate rating. However, as the evidence does not show ankylosis, extension to 30 degrees or worse, even with painful motion and other factors, or nonunion of the tibia and fibula, a separate rating is not warranted. In sum, the preponderance of the evidence shows that the Veteran’s left total knee replacement resulted in intermediate degrees of residual weakness, pain or limitation of motion, but not chronic residuals consisting of severe painful motion or weakness in the affected extremity until April 4, 2017. There is no doubt to be resolved, and a rating of 60 percent is warranted as of April 4, 2017, but not earlier. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.59; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Right Knee Rating The Veteran contends that he should have a higher rating for his left total knee replacement. In this regard, in an October 2018 correspondence, he reported that his right knee replacement has failed and that he can only walk with the aid of a cane or walker. Upon review of the evidence, the Board find that a 60 percent rating for the Veteran’s right knee total replacement is warranted as of April 4, 2017, but not earlier. In this regard, the January 2016 examiner found that the Veteran experienced some right knee reduced range of motion and strength, but did not find the presence of crepitus or instability. The examiner concluded that the Veteran’s right knee replacement resulted in intermediate degrees of residual weakness, pain, or limitation of motion. However, the October 2017 examination shows that the Veteran experiences severe right knee symptomatology. In addition, during VA treatment on April 4, 2017, the Veteran competently and credibly reported experiencing severe right knee symptoms. Therefore, the evidence indicates that the Veteran experienced severe right knee impairment as of such date. See Swain, 27 Vet. App. at 219. The Board has considered whether it may be appropriate to rate the Veteran’s right knee disability under other DCs. However, the provisions of 38 C.F.R. § 4.14 prohibit the evaluation of the same disability under various diagnoses, and provide that the evaluation of the same manifestations under different diagnoses is to be avoided. Separate evaluations are, however, available when none of the manifestations of the disabilities at issue overlap. Esteban, 6 Vet. App. at 261-62. As DC 5055 contemplates all residuals up to the 30 percent level of impairment, only DCs 5256, 5261, or 5262 are potentially applicable for a separate rating. However, as the evidence does not show ankylosis, extension to 30 degrees or worse, even with painful motion and other factors, or nonunion of the tibia and fibula, a separate rating is not warranted. In sum, the preponderance of the evidence shows that the Veteran’s right total knee replacement resulted in intermediate degrees of residual weakness, pain or limitation of motion, but not chronic residuals consisting of severe painful motion or weakness in the affected extremity until April 4, 2017. There is no doubt to be resolved, and a rating of 60 percent is warranted as of April 4, 2017, but not earlier. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.59; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. TDIU 3. Entitlement to a TDIU since April 5, 2012. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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 or more. 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Analysis The Veteran is seeking a TDIU based on his service-connected disabilities. In this regard, in a December 2010 correspondence, he reported that he cannot stand or walk for prolonged periods and requires assistive devices to walk. In his May 2011 TDIU application, the Veteran wrote that he became too disabled to work in 1990. He further wrote that he cannot work due to his bilateral knees, hearing loss, and tinnitus. He also reported graduating high school and being employed in residential construction with training in electrical, plumbing, and concrete foundation work. He further reported working as a construction contractor from 1975 until becoming too disabled to work. Since April 5, 2012, as described above, the Veteran’s bilateral knee disabilities have resulted in pain and required him to use a cane or walker to walk. He has also been limited in how long he can stand and how far he can walk due to these disabilities. In addition, he has been service-connected for hearing loss and tinnitus since February 2003. Since at least April 5, 2012, the combination of the functional effects of the Veteran’s service-connected disabilities have prevented him from securing and following substantially gainful employment. In this regard, the Veteran has extensive work experience and training in the construction industry. This type of employment is physical in nature and requires being able to stand and walk across uneven and potentially dangerous terrain. The Veteran’s knee disabilities prevent him from performing this type of work. In addition, his hearing loss and tinnitus inhibit his ability to work in a sedentary occupation. Therefore, after resolving reasonable doubt in the Veteran’s favor, the Board finds that since at least April 5, 2012, the combined effects of his service-connected disabilities are of such severity as to preclude him from securing or following substantially gainful employment and a TDIU is warranted as of such date. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The issue on appeal becomes one of entitlement to a TDIU prior to April 5, 2012. The Veteran is not prejudiced by this action as it is a grant of benefits without any denial of greater benefits. This issue will also be addressed further in the remand section below. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent for left knee degenerative joint disease prior to September 30, 2011. 2. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease prior to April 5, 2012. Since the Board last remanded these claims, the United States Court of Appeals for Veterans Claims (Court) found that VA examiners have an obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up and to use this information to characterize additional functional loss during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, on remand an opinion should be obtained in regard to retrospective findings in accordance with Sharp based on the historic range of motion testing during the November 2007 VA examination in order to determine the proper ratings for such disabilities for the time periods prior to the Veteran’s total knee replacement surgeries. In addition, the Veteran’s VA treatment records indicate that he underwent left knee total replacement prior to September 30, 2011. On remand, the Veteran should be asked to identify the treatment provider that performed his left knee total replacement and provide authorization for the VA to obtain such records. 3. Entitlement to a TDIU prior to April 5, 2012. This issue is remanded as it is intertwined with the Veteran’s claims of entitlement to higher knee ratings prior to undergoing knee replacements. The matters are REMANDED for the following action: 1. Afford the Veteran an opportunity to submit or identify any outstanding relevant treatment records, to include treatment records for his left knee total replacement surgery. Obtain any identified records with the use of the Veteran’s authorization as necessary. If such records are unavailable, the file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Forward the claims file to an appropriate VA examiner to assess the severity of the Veteran’s service-connected left knee disability prior to September 30, 2011 and his right knee disability prior to April 5, 2012. The examiner should estimate the amount in degrees of range of motion lost due to flare-ups experienced by the Veteran prior to April 5, 2012, including at the time of the examination November 2007. The examiner also estimate on the functional impairments resulting from the Veteran’s left and right knee disabilities prior to April 5, 2012. (Continued on the next page)   If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel