Citation Nr: 1824554 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 14-28 653A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a higher rating for service-connected right knee ligament tear, currently evaluated as 10 percent prior to July 30, 2012 with a separate rating for limitation of extension rated as 40 percent prior to July 30, 2012. 2. Entitlement to a higher rating for service-connected right total knee arthroplasty, currently evaluated as a 100 percent disabling from July 30, 2012, 30 percent disabling from February 1, 2014, 100 percent disabling from May 2, 2016, and 60 percent disabling from October 1, 2016. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty from October 1978 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2017, the Veteran withdrew his request to appear before a member of the Board. 38 C.F.R. § 20.704(e). It appears that service connection for a left knee disability and a back disability have been raised by the record in an August 2014 statement, but have not since been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The AOJ should note that the November 2017 VA examination report discusses a relationship between the right knee disability and the Veteran's back and left knee disabilities. FINDINGS OF FACT 1. Prior to July 30, 2012, the Veteran's right knee disability has been productive of painful motion but without ankylosis, recurrent subluxation or instability, impairment of tibia or fibula, genu recurvatum, or frequent episodes of locking, pain, and effusion. 2. From February 1, 2014 to May 1, 2016, and since October 1, 2016, the Veteran's total right knee replacement has been manifested by chronic residuals consisting of severe painful motion and weakness in the affected right lower extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee limitation of flexion and a rating in excess of 40 percent for right knee limitation of extension have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5256-5263 (2017). 2. Effective February 1, 2014 to May 1, 2016, the criteria for a 60 percent disability rating, but no higher, for the Veteran's total right knee replacement have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5055 (2017). 3. From October 1, 2016, the criteria for a rating in excess of 60 percent for the Veteran's total right knee replacement have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5055 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The evaluation of knee disability under Veteran's Law at this time, and in light of the history of this case, is multifarious. By way of background in this complex case, the Veteran filed an increased rating claim for his right knee disability on July 6, 2012. The RO continued a 10 percent rating for right knee limitation of flexion (DC 5260) and continued a separate 40 percent rating for right knee limitation of extension (DC 5261) prior to July 30, 2012. A 100 percent rating pursuant to 38 C.F.R. § 4.71a, DC 5055 was assigned effective July 30, 2012 as a result of a right total knee replacement surgery. A 30 percent rating was then assigned effective February 1, 2014 pursuant to DC 5055. The Veteran had a revision surgery of the right knee and a temporary 100 percent rating was assigned effective May 2, 2016. He was then assigned a 60 percent rating effective October 1, 2016. The Board acknowledges the Veteran's contentions that he opposed the reduction of his 10 percent and 40 percent ratings for right knee disability to a single 30 percent rating. However, the Veteran had a right total knee replacement in July 2012. This surgery effectively closed out the previous right knee ratings under the diagnostic codes pertaining to the knees and his right knee was then rated under DC 5055 effective the date of the total knee replacement surgery. Given that the total right knee replacement surgery changed the applicable diagnostic code, the issue on appeal has been rephrased as entitlement to a higher disability rating. Period on Appeal Prior to July 30, 2012 As noted above, prior to July 30, 2012, the Veteran was in receipt of a 10 percent rating for limitation of flexion and a 40 percent rating for limitation of extension. The evidence prior to July 30, 2012, to include the one year look-back period, shows that a higher rating for this period is not warranted. A treatment record from March 2012 notes that the Veteran had full flexion and extension and that all ligaments appeared stable. A July 2012 treatment record, dated shortly before the total knee replacement surgery, states that he had full flexion and extension although he had deteriorating range of motion. His ligaments were stable and his knee did not have effusion. A higher rating is not available under DC 5258 for removal of semilunar cartilage. The medical evidence does not show that he has ankylosis (5256), instability (5257), effusion (5258), genu recurvatum (DC 5263), or impairment of the tibia and fibula (DC 5262) prior to July 30, 2012. Accordingly, a higher rating under these codes is not appropriate. Moreover, the evidence does not show that a higher rating is warranted under the limitation of flexion and extension codes. The Board acknowledges the Veteran's contentions regarding painful motion prior to the surgery; however, the Veteran's treatment records during this time period reveal essentially full flexion and extension. Given the Veteran's overall range of motion, even after consideration of his painful motion, the Board finds that the Veteran's symptomology does not more nearly approximate the criteria required for a higher rating. See 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). From February 1, 2014 to Present Effective July 30, 2012, the RO assigned a 100 percent rating for his right total knee replacement surgery. A 30 percent rating was then assigned effective February 1, 2014 pursuant to DC 5055. The Veteran then had revision surgery on the right knee on May 2, 2016 and was assigned a temporary 100 percent rating based on convalescence. A 60 percent rating was then assigned effective October 1, 2016. In summary, the Veteran contends that he is entitled to a higher rating as his symptoms are more severe than his currently assigned rating. 38 C.F.R. § 4.71a, DC 5055 provides a total rating (100 percent) for one year following prosthetic replacement of a knee joint. A 30 percent rating, which is the minimum rating, is assigned for intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to diagnostic codes 5256, 5261, or 5262. A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 60 percent rating effective February 1, 2014 is warranted. VA examination reports from October 2012 and September 2013, although dated during the period the Veteran was assigned a 100 percent rating, note that the Veteran has chronic residuals consisting of severe painful motion or weakness. A treatment record from March 2014 notes decreased range of motion with pain, tenderness, and effusion. Moreover, the Veteran's August 2014 lay statement describes difficulty standing, dressing himself, driving a vehicle, and showering due to painful motion and loss of mobility. He also notes that he fell twice and that he wears a brace on a daily basis. The Veteran is competent to describe the severity of his symptoms as this is within his lay observations. Accordingly, in light of this probative evidence regarding the Veteran's functional impairment, a 60 percent rating is warranted from February 1, 2014 to May 1, 2016. A 60 percent rating is already in effect from October 1, 2016. A higher rating in excess of 60 percent is not applicable in the instant case. A higher rating under DC 5055 is only applicable for the one year following implantation of the prosthesis. Moreover, consideration of a rating under DC 5256, 5261, or 5262 pursuant to DC 5055 is not required as a higher rating is not available under these DCs. In regards to the 100 percent rating effective May 2, 2016, the Veteran contends that he is entitled to an extension of the convalescence period. As the May 2016 surgery was revision surgery to his total knee replacement, he is not entitled to a 100 percent under DC 5055. A temporary 100 percent under 38 C.F.R. § 4.30 for convalescence is warranted for one, two, or three months when there is a surgery necessitating at least one month of convalescence; surgery with severe postoperative residuals (such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches); or immobilization by cast, without surgery, of one major joint or more. By October 1, 2016, the Veteran no longer required convalescence so as to warrant a rating under 38 C.F.R. § 4.30. Although he continued to have difficulty lifting, standing, kneeling, and squatting, he returned to work in September with modified restrictions. As he was able to return to work and complete some activities outside of the house, an extension of the 100 percent rating after October 1, 2016 is not warranted. Additional Considerations The Board acknowledges the Veteran's request for extraschedular consideration. However, the Board finds that the rating criteria contemplates the Veteran's disability. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. 32, 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. The Veteran's reports missing work due to flare-ups, instability, and pain, as well as difficulty walking, standing, kneeling, sitting, climbing, bending, lifting, and stooping. However, these symptoms are contemplated by the rating schedule given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The rating criteria are therefore adequate to evaluate the Veteran's right knee disability. The Board is sympathetic to the Veteran's contention that he is entitled to a total disability rating based on individual unemployability (TDIU) on the basis that his right knee disability makes it difficult for him to complete his duties as a construction worker. The Board notes the November 2017 letter from the Veteran's doctor which states that the Veteran is unable to keep up with his current work demands and that he would benefit from an early retirement. However, the evidence from 2017 reveals that the Veteran is still currently employed. Also, it is important for the Veteran to understand that a 60% knee disability will, by definition, cause the Veteran's many problems. Accordingly, entitlement to TDIU is warranted as a matter of law. See Sabonis v. Brown, 6 Vet App 426 (1994); 38 C.F.R. § 4.16. ORDER Prior to July 30, 2012, a rating in excess of 10 percent for right knee disability is denied. Prior to July 30, 2012, a rating in excess of 40 percent for right knee limitation of extension is denied. From February 1, 2014 to May 1, 2016, a 60 percent rating but no higher for total right knee replacement is granted, subject to the applicable criteria governing the payment of monetary benefits. From October 1, 2016, a rating in excess of 60 percent for total right knee replacement is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs