Citation Nr: 1807963	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  08-31 154	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to a rating in excess of 60 percent for right knee disability post total knee replacement.


REPRESENTATION

Veteran represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

S. Solomon, Associate Counsel 






INTRODUCTION

The Veteran served on active duty from April 1990 to July 1990 and in February 1993.

The claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which increased the evaluation for the Veteran's right knee disability to 100 percent from July 2, 2009 for the convalescence period following knee replacement surgery and a 30 percent rating thereafter. 

Since that time, the RO has increased the evaluation to 60 percent by way of a July 2011 rating decision.  In general, it is presumed that a veteran is seeking the maximum benefit allowed by law and regulation when claiming an increased rating and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993).  Here 60 percent is not the maximum rating possible, and as such the issue remains in controversy.  The Board will proceed to adjudicate the claim. 

This claim was previously before the Board in April 2015.  At that time, the Board remanded the claim because the Statement of the Case (SOC) issued in August 2013, where the RO adjudicated the claim, was not associated with the claims file.  The RO has since obtained the SOC and Form 9 and these documents are now in the claims file. Therefore, there has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict compliance with the Board's remand directives is required under Stegall).

Notably, the Board's April 2015 remand directed the RO to conducted further development with respect to the claims regarding the Veteran's left knee disability, back disability and psychiatric disability.  However, those issues are not before the Board at this time because the RO has not completed the requested development.   

The Board is cognizant that this issue has not been recently re-adjudicated, with additional evidence regarding the knee being subsequently added to the file, to include a January 2018 VA examination regarding both knees.  This evidence, however, is cumulative and redundant of evidence previously of record in light of the questions remaining before the Board and further, there is no schedular basis for a higher rating.  The Board previously considered an NOD to encompass a request for extraschedular consideration of this issue, but did not provide a specific contention, other than painful motion, as a basis.  Namely, this additional evidence does not indicate additional surgery or different contention regarding a basis for additional rating based on an extraschedular basis.  The new evidence does not contain evidence different than previously of record, and as noted, that there is no schedular basis for a higher rating.  For these reasons, the Board finds that an additional remand is not necessary and would serve no useful purpose.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


FINDINGS OF FACTS

1. The Veteran's right knee disability is productive of severely painful motion. 

2. The Veteran's right knee disability is not manifested by symptomatology that is not contemplated in the rating schedule. 


CONCLUSION OF LAW

The criteria for right knee disability post total right knee replacement in excess of 60 percent have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5055- 5261 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act (VCAA), the VA has a duty to notify claimants about requirements to substantiate a claim for VA benefits, and assist in the development of their claim. 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017).  

VA satisfied the duties to notify and assist in this appeal and neither the Veteran nor his representative has asserted any error as to these duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).  The Veteran was provided a VA examination in March 2011, April 2011, and September 2014; as discussed in greater details below, the Board finds these examination adequate upon which to adjudicate the merits of this appeal.

II. Increase rating 

The VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  In the Rating Schedule, diagnostic codes are assigned to specific disabilities.  These diagnostic codes designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability.  38 C.F.R. §§ 3.321, 4.10 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017).  

As a preliminary matter, it is noteworthy that there are several DCs that are applicable to knee disabilities found in 38 C.F.R. § 4.71a (2017).  In this case, however, the Board need not discuss the applicability of all other DCs pertaining to a knee disability, as none of the other DCs allow for a rating higher than what is already assigned-60 percent under DC 5261-5055.   

Hyphenated DCs are used when a rating under one DC requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

DC 5261 is applicable where there is a limitation of range of extension.  A 30 percent rating is assigned under DC 5261 for leg extension limited to 20 degrees. A higher 40 percent rating is assigned for leg extension limited to 30 degrees. A maximum 50 percent rating is assigned for leg extension limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261 (2017).

Under DC 5055, a disability rating of 100 percent is assigned for one year following the knee replacement surgery.  Thereafter, it requires an assignment of 30 percent disability rating when there is intermediate degree of residual weakness, pain or limitation of motion rate by analogy to diagnostic code 5256, 5261, or 5262.  Alternatively, a higher rating of 60 percent is assigned where there are residuals consisting of severe painful motion or weakness in the affected extremity.

In evaluating range of motion, VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995).  

Here, the Veteran underwent a right knee joint replacement in July 2, 2009.  As a result, the Veteran's right knee disability was assigned a 100 percent rating as required by DC 5055.  That rating was in place for 13 months until September 1, 2010, when it was reduced to 60 percent.  Because a100 percent rating is assigned only for 1 year following implantation of the prosthesis, 60 percent is the highest schedular rating allowed for the Veteran's knee disability after his total knee replacement. In other words, there is no legal basis for the assignment of a higher schedular rating. 

However, in May 2011, the Veteran filed a notice of disagreement, where he requested consideration of extraschedular rating. Therefore, the Board has considered whether an extraschedular rating is warranted for the Veteran's right knee disability.  See 38 C.F.R. § 3.321(b)(1) (2017).  
 
Ordinarily, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  See Doucette v. Shulkin, No. 15-2818 (Vet. App. March 6, 2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances).  Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.  Thun v. Peake, 22 Vet App 111 (2008).

In this case, review of the evidence shows that the Veteran experiences severe right knee pain, which he reports prevents prolonged walking, standing, and climbing stairs.  These functional impairments, however, have been considered by the Board and are contemplated under the schedular rating criteria.  

Walking, standing and climbing stairs requires an individual to bend the knees, as well as bear weight on the knees.  The specific acts of bending the knee in flexion or extension that may be required to climb stairs or ladders are contemplated by the schedular rating criteria based on limitation of motion (flexion and extension). 
Furthermore, interference with walking, standing, and climbing stairs is considered as part of the schedular rating criteria under 38 C.F.R. § 4.45, which contemplates disturbance of locomotion, instability of station, and interference with weight-bearing because prolonged walking necessarily involves weight bearing.  38 C.F.R. § 4.45.  To the extent that prolonged walking, standing , and climbing causes incidental right knee pain, such pain is contemplated as part of the schedular rating criteria because, read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain.  Thus, the lay and medical evidence of records fail to show unique or unusual symptomatology regarding the Veteran's right knee disability. 

Because, the first prong of an extraschedular consideration has not been satisfied, the Board need not reach the second and steps as indicated above.  Therefore, the Board finds no exceptional or unusual disability picture in this case, and as such application of extraschedular is unnecessary.

In summary, the preponderance of the evidence weighs against a rating in excess of 60 percent for the Veteran's right knee disability.  




ORDER

A rating in excess of 60 percent for right knee disability post total right knee replacement is denied. 



____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs