Citation Nr: 1806932	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO. 14-03 159	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

1. Entitlement to service connection for sleep apnea.

2. Entitlement to a temporary total disability rating for a partial knee replacement beyond November 10, 2012.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel




INTRODUCTION

The Veteran served on active duty from February 1974 to January 1977 and from April 1977 to September 1998. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2012 and August 2013 rating decisions of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Veteran withdrew his request for a hearing before the Board.

In July 2016, the Veteran filed a notice of disagreement (NOD) with the June 2016 rating decision that assigned or continued ratings for degenerative joint disease (DJD) of the right knee, DJD of the right elbow, and bilateral hearing loss; as well as service connection for a bilateral hand condition, a bilateral wrist condition, and a heart condition. The Veteran has not yet been issued a statement of the case (SOC) for those issues. Ordinarily, the claim would be remanded for the issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, it appears the RO has acknowledged the Veteran's NOD and additional action is pending. See August 2016 notification letter. Therefore, this situation is distinguishable from Manlincon, where an NOD had not been recognized, and remand is not necessary at this time.


FINDINGS OF FACT

1. In June 2017, VA received a written statement in which the Veteran withdrew his appeal on the issue of entitlement to service connection for sleep apnea; there are no questions of fact or law remaining before the Board in this matter.

2. On September 10, 2012, the Veteran underwent a partial right knee replacement.



CONCLUSIONS OF LAW

1. The criteria for the withdrawal of a substantive appeal have been met in regard to the claim for entitlement to service connection for sleep apnea. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2. The criteria for a temporary total disability rating based on a partial right knee replacement of the service-connected right knee disability from September 10, 2012, to October 10, 2013, have been met, to include a one month period of convalescence following the surgery. 38 U.S.C. §§ 1155 , 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.30, 4.71a, Diagnostic Code 5055, Note 1 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify & Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (a) (2017). However, in view of the Board's favorable decision herein, further assistance is unnecessary.

II. Legal Criteria & Analysis

Sleep Apnea

Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn at any time before the Board promulgates a decision, and may be withdrawn on the record at a hearing, or in writing. 38 C.F.R. § 20.204 (2017).

In a June 2017 Statement in Support of Claim, the Veteran, through his representative, indicated that he wished to withdraw from appeal his claim of entitlement to service connection for sleep apnea. The Board finds that the Veteran has withdrawn the appeal as to that issue. Therefore, there remain no allegations of errors of fact or law for appellate consideration on this particular matter. Accordingly, the Board does not have jurisdiction to review the issue, and the identified issue on appeal is dismissed. See 38 C.F.R. § 20.204.

Right Knee Disability

Under 38 C.F.R. § 4.71a, Diagnostic Code (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. With intermediate degrees of residual weakness, pain or limitation of motion, the disability will be rated by analogy to Codes 5256, 5261 or 5262. The mandatory minimum rating is 30 percent. 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, Note 1.

On September 10, 2012, the Veteran underwent a right knee unicondylar arthroplasty (partial right knee replacement) with a private physician. See S.R.M.C. discharge summary. Service connection for a right knee disability was in effect at the time.

Subsequently, the Veteran filed for a temporary total disability rating for the partial right knee replacement. The RO granted a temporary total disability rating effective September 10, 2012, until November 1, 2012, based on surgical or other treatment necessitating convalescence. The RO did not extend the rating for a full year after the surgery on the ground that the Veteran underwent a partial knee replacement rather than a total knee replacement. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran appealed, contending that he is entitled to a temporary total disability rating for a year following his partial right knee replacement because Code 5055 does not distinguish between total knee replacements and partial knee replacements. See, e.g., June 2014 correspondence.

In May 2016, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the provisions of Code 5055 may be applicable to partial knee replacements as well as total knee replacements. See Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016). 

Prior to the issuance of the Federal Circuit's decision, in July 2015, VA instituted a regulatory change that clarified only total knee replacements may be evaluated under Code 5055. See 80 Fed. Reg. 42,040 (July 16, 2015).  The effective date for the final rule concerning Code 5055 is July 16, 2015.  As the Veteran's claim was pending prior to that date, and in light of the Federal Circuit's decision in Hudgens and the uncontroverted evidence of a partial knee replacement, the Board finds that the Veteran is entitled to a temporary total disability rating for a partial right knee replacement for the regulatory period under 38 C.F.R. § 4.71a, Diagnostic Code 5055 effective from September 10, 2012, and ending on October 10, 2013.


ORDER

The appeal for entitlement to service connection for sleep apnea is dismissed.

Entitlement to a temporary total disability rating for a partial knee replacement from September 10, 2012, to October 10, 2013, is granted, subject to the laws and regulations governing the award of monetary benefits.




____________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs