Citation Nr: 1806776 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-22 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to increases in the staged ratings (of 30 percent prior to April 14, 2015, and 60 percent thereafter) for residuals of left total knee arthroplasty with surgical scars. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to April 14, 2015. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1969 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO) that granted a temporary 100 percent rating due to convalescence for the Veteran's left knee disability, effective April 24, 2008, and rated 30 percent effective from June 1, 2009. A December 2010 rating decision granted a temporary 100 percent rating due to convalescence for the Veteran's service-connected left knee disability, effective October 19, 2010, and rated 30 percent effective from December 1, 2010. The case was previously before the Board in January 2015 when the matters on appeal were remanded for additional development. An April 2015 rating decision granted an increased (60 percent) rating for the Veteran's left knee disability, effective from April 14, 2015. The case was again before the Board in April 2017 when it was remanded for additional development. A September 2017 rating decision granted entitlement to TDIU, effective from April 14, 2015. The matters on appeal have been characterized accordingly. FINDINGS OF FACT 1. From June 1, 2009, the Veteran's residuals of left total knee arthroplasty with surgical scars, has resulted in chronic residuals consisting of severe painful motion or weakness in the affected extremity. 2. Effective June 1, 2009, the Veteran's service-connected residuals of left total knee arthroplasty with surgical scars precludes substantially gainful employment. CONCLUSIONS OF LAW 1. From June 1, 2009, the criteria for a 60 percent disability rating have been met for residuals of left total knee arthroplasty with surgical scars. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2017). 2. Effective June 1, 2009, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Residuals of Left Total Knee Arthroplasty Disability evaluations are determined by the application of a schedule of ratings, which 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. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends that he is entitled to increased staged ratings (of 30 percent prior to April 14, 2015, and 60 percent thereafter) for residuals of left total knee arthroplasty with surgical scars. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Historically, the Veteran underwent left total knee arthroplasty on April 24, 2008. The Veteran's disability is rated under Diagnostic Code 5055 (for prosthetic knee replacement). A 100 percent rating is assigned for one year following implantation of the prosthesis. The minimum rating that may be assigned thereafter is 30 percent. For chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is assigned. Intermediate degrees of residual weakness, pain, or limitation of motion are to be rated by analogy to Diagnostic Code 5256, 5261, or 5262. 38 C.F.R. § 4.71a. As noted above in the Introduction, during the pendency of this appeal, a May 2008 rating decision granted a temporary 100 percent rating due to convalescence for the Veteran's service-connected left knee disability, effective April 24, 2008, and rated 30 percent effective from June 1, 2009. In addition, a December 2010 rating decision granted a temporary 100 percent rating due to convalescence for the Veteran's service-connected left knee disability, effective October 19, 2010, and rated 30 percent effective from December 1, 2010. Inasmuch as the Veteran was awarded a (maximum) 100 percent rating from April 24, 2008 through May 31, 2009, and from October 19, 2010 through November 30, 2010, those periods are not before the Board and will not be addressed herein. Based on the evidence of record, for the period since June 1, 2009, the Board finds that the evidence approximates the criteria for a 60 percent rating for his left knee disability. Notably, on June 2009 VA joints examination, the Veteran reported pain and stiffness, the ability to stand for only 15 to 30 minutes, the ability to walk a quarter of a mile but less than a mile, as well as positive clicking and snapping. December 2009 lay correspondence from W.M., the Veteran's brother, reported that the Veteran had little movement in his left knee. On August 2010 VA joints examination, the Veteran reported having persistent problems with his left knee since the total knee replacement. He also reported giving way, instability, pain, stiffness, weakness, incoordination, swelling, tenderness, and flare-ups (severe, occurring weekly, lasting hours, and precipitated by increased exercise of any type). The Veteran stated he was unable to stand for more than a few minutes, or walk more than a few yards. Thereafter, VA treatment records and VA examination reports consistently show the Veteran's report of significantly impaired functional ability. See, e.g., December 2010 VA joints examination report (noting the functional impact of the Veteran's left knee disability was difficulty walking, standing for a prolonged period of time, difficulty climbing steps, and difficulty squatting); April 2015 VA knee and lower leg conditions examination report (noting the Veteran was unable to perform joint stability testing because he could not tolerate the pain, and that the knee pain impairs his ability to lift, walk, stand, cashier and drive); June 2017 VA knee and lower leg conditions examination report (finding the residuals of the Veteran's total knee replacement was intermediate degrees of residual weakness, pain, or limitation of motion). Resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports the Veteran's left knee arthroplasty has resulted in severe painful motion or weakness in the affected extremity. Thus, pursuant to Diagnostic Code 5055, the Veteran should be given the maximum allowable rating of 60 percent for his left knee since June 1, 2009. The Board notes that in September 2017 correspondence, the Veteran stated that the grant of TDIU would satisfy his appeal. Inasmuch as the grant of a 60 percent rating for the Veteran's left knee arthroplasty since June 1, 2009 allows for the grant of TDIU effective from said date, which the Board grants below, the Board finds that the grant of a 60 percent rating for the Veteran's left knee arthroplasty since June 1, 2009 is a complete grant of the benefits requested and there is no need to further consider this matter. TDIU Prior to April 14, 2015 A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in 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, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). The Veteran contends that he is entitled to TDIU prior to April 14, 2015 based on his service-connected left knee disability. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Based on the decision above, beginning June 1, 2009, the Veteran was in receipt of service connection for residuals of left total knee arthroplasty with surgical scars, rated 60 percent disabling, making him eligible for TDIU on a schedular basis. 38 C.F.R. § 4.16(a). After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran's service-connected left knee disability prevents him from securing and following substantially gainful employment effective from June 1, 2009. In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based on the evidence presented in this case, the Board finds that the evidence supports a finding that the functional impairment associated with the Veteran's service-connected residuals of left total knee arthroplasty with surgical scars is of such nature and severity as to preclude substantially gainful employment, effective from June 1, 2009. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail). The Veteran has providing differing accounts as to when he last worked (2005, 2007 and 2008), as a self-employed home improvement/repair contractor. See, e.g., Social Security Administration (SSA) Form 3368; see also April 2015 VA knee and lower leg conditions examination report. The evidence shows that his educational background includes a GED, and that his post-service employment has been exclusively working in home improvement/repair. See February 2011 VA Form 21-8940. Based on the severe impairment documented in the VA treatment records and VA examination reports caused by the Veteran's residuals of left total knee arthroplasty with surgical scars, as well as supporting lay statements as to the severity and impact of his service-connected left knee disability, the Board finds that TDIU is warranted effective June 1, 2009. To the extent the Veteran may be seeking entitlement to TDIU prior to June 1, 2009, the Board notes that the only service-connected disability prior to June 1, 2009 was left knee degenerative joint disease with limitation of flexion and extension, for a combined 40 percent rating. Prior to June 1, 2009 (and not including the period from April 24, 2008 through May 31, 2009, when the Veteran was awarded the maximum schedular rating of 100 percent due to convalescence for his service-connected left knee disability), there is no objective medical evidence in support of a finding that the Veteran should be awarded TDIU prior to June 1, 2009, and the Board finds that the preponderance of the evidence is against the Veteran's claim. ORDER Subject to the applicable laws and regulations governing the payment of monetary benefits, effective June 1, 2009, a rating of 60 percent for residuals of left total knee arthroplasty with surgical scars is granted Subject to the applicable laws and regulations governing the payment of monetary benefits, an effective date of June 1, 2009, and no earlier for the award of TDIU is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs