Citation Nr: 18123771 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 06-07 045 DATE: August 3, 2018 ORDER The appeal seeking a rating in excess of 10 percent prior to May 23, 2007, 20 percent from July 1, 2007, to November 2, 2010, and 30 percent since January 1, 2012, for status/post total left knee arthroplasty is dismissed. Prior to April 4, 2007, a 20 percent rating, but no more, for status/post total right knee arthoplasty is granted, subject to the regulations governing the award of monetary benefits. From June 1, 2007, to November 26, 2007, a rating in excess of 10 percent for status/post total right knee arthoplasty is denied. From January 1, 2008, to April 19, 2010, a 20 percent rating, but no more, for status/post total right knee arthoplasty is granted, subject to the regulations governing the award of monetary benefits. Since June 1, 2011, a 60 percent rating, but no more, for status/post total right knee arthoplasty is granted, subject to the regulations governing the award of monetary benefits. Prior to April 30, 2015, a rating in excess of 10 percent for osteoarthritis of the right hip is denied. Since July 1, 2016, a 50 percent rating, but no more, for total right hip arthroplasty is granted, subject to the regulations governing the award of monetary benefits. Prior to April 30, 2015, a rating in excess of 10 percent for osteoarthritis of the left hip is denied. Since July 1, 2016, a 50 percent rating, but no more, for total left hip arthroplasty is granted, subject to the regulations governing the award of monetary benefits. An effective date prior to May 30, 2008, for the award of a total disability rating based on individual employability (TDIU) due to service-connected disabilities is denied. Service connection for hypertension is denied. Service connection for tachycardia is denied. FINDINGS OF FACT 1. The Veteran served on active duty from January to May 1987, with additional service in the National Guard. 2. In April and July 2017, prior to the promulgation of a decision in this appeal, the Veteran indicated that he wished to withdraw the claim seeking increased ratings for a left knee disability. 3. From July 25, 2006, to April 4, 2007, a right knee disability manifested by subjective complaints of pain and tenderness; objective findings included dislocated semilunar cartilage with episodes of pain and effusion. 4. From June 1, 2007, to November 26, 2007, a right knee disability manifested by subjective complaints of pain; objective findings did not demonstrate limited range of motion or effusion. 5. From January 1, 2008, to April 18, 2010, a right knee disability manifested by subjective complaints of pain and frequent episodes of locking productive of notable functional impairment. 6. Since June 1, 2011, a right knee disability has been manifested by subjective complaints of severe painful motion and weakness. 7. Prior to April 30, 2015, right and left hip disabilities manifested by subjective complaints of pain and flare-ups; objective findings did not reveal motion lost beyond 10 degrees, extension to five degrees, or flexion to 45 degrees for either hip. 8. Since July 1, 2016, right and left hip disabilities have been manifested by objective findings of moderately severe residuals of weakness, pain, and limitation of motion. 9. The Veteran was first entitled to a TDIU effective May 30, 2008; an informal claim for entitlement was submitted in December 2007. 10. Neither hypertension nor tachycardia were shown in service nor are they causally or etiologically related to service, to include any injury or event therein. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the issue of entitlement a rating in excess of 10 percent from August 29, 2003, to May 23, 2007, 20 percent from July 1, 2007, to November 2, 2010, and 30 percent since January 1, 2012, for status/post total left knee arthroplasty have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Prior to April 4, 2007, the criteria for a 20 percent rating, but no more, for status/post total right knee arthoplasty have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5258 (2017). 3. From June 1, 2007, to November 26, 2007, the criteria for a rating in excess of 10 percent for status/post total right knee arthoplasty have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5259 (2017). 4. From January 1, 2008, to April 18, 2010, the criteria for a 20 percent rating, but no more, for status/post total right knee arthoplasty have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5258 (2017). 5. From June 1, 2011, to the present, the criteria for a 60 percent rating, but no more, for status/post total right knee arthoplasty have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5055 (2017). 6. Prior to April 30, 2015, the criteria for a rating in excess of 10 percent for right hip osteoarthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DCs 5003-5253 (2017). 7. Since July 1, 2016, the criteria for a 50 percent rating, but no more, for a right hip disability status/post total hip arthroplasty have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5054 (2017). 8. Prior to April 30, 2015, the criteria for a rating in excess of 10 percent for left hip osteoarthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5003-5253 (2017). 9. Since July 1, 2016, the criteria for a 50 percent rating, but no more, for a left hip status/post total hip arthroplasty have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5054 (2017). 10. The criteria for an effective date earlier than May 30, 2008, for the grant of a TDIU have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2017). 11. Hypertension was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 12. Tachycardia was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, the Veteran offered testimony regarding several of these appeals during a videoconference hearing in December 2011. A transcript of this hearing has been associated with the record. In June 2018, he was informed that the Veterans Law Judge (VLJ) who presided over the hearing was no longer with the Board, and was offered a hearing before a different VLJ. As the Veteran did not request a new hearing within 30 days of receipt of the date of the letter, the Board may proceed with its review of these matters. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. Of note, he has not requested that a hearing be scheduled regarding the remaining appeals at any time. Further, these appeals were previously remanded by the Board in April 2012 for further development, which has since been completed. See Stegall v. West, 11 Vet. App. 268 (1998). At that time, the Board also remanded a service connection claim for right leg radiculopathy. However, the Veteran was subsequently awarded service connection for right lower extremity radiculopathy and right lower extremity radiculopathy of the femoral nerve in February 2017 and December 2017 rating decisions, respectively. These determinations are construed as complete grants of the service connection appeal, such that this matter is no longer before the Board. Similarly, the Board remanded an initial rating appeal for left knee total arthroplasty in April 2012, which included the issue of whether a separate compensable rating for instability was warranted. Service connection for left knee instability was granted in a rating decision issued later that month. The Veteran has not expressed dissatisfaction with this determination or the rating assigned, such that this factor will not be assessed herein. Further, the April 2012 decision remanded an appeal seeking an increased rating for right knee total arthroplasty. A November 2017 rating decision awarded separate service connection for right knee instability, such that this factor will not be addressed. Withdrawal The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). In April and July 2017, the Veteran withdrew his appeal seeking increased ratings for his left knee disability during certain periods on appeal and indicated that he was satisfied with the ratings as assigned. No adjudicatory actions have been taken since that time with respect to this appeal. Moreover, this withdrawal was requested prior to the promulgation of a Board decision on this matter, such that there are no allegations of error of fact or law with respect to this claim remaining for appellate consideration. Thus, the Board does not have jurisdiction to further consider this appeal, and it is dismissed. Increased Ratings Claims The Veteran has been awarded temporary total evaluations on multiple occasions for several of his disabilities. As this represents the maximum benefit available and he has not indicated dissatisfaction with these ratings as assigned, these periods will not be considered in the Board’s analyses below. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Claim for Right Knee Pertaining to the right knee disability, the Veteran is seeking increased ratings for multiple periods. For the periods in which he was in receipt of a 10 percent rating, his disability was rated in accordance with DC 5259. To warrant a higher rating, there must be evidence of: • symptomatic dislocation and/or removal of semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint (20% under DC 5258); • limitation of flexion to 30 degrees (20% under DC 5260); or • limitation of extension to 15 degrees (20% under DC 5261). Other diagnostic codes relating to the knee are DC 5256 (ankylosis), DC 5262 (impairment of tibia and fibula), and DC 5263 (genu recurvatum). These disorders are not shown in the record for the periods on appeal and application of these diagnostic codes is not warranted. Further, evidence of degenerative arthritis absent compensable limitation of motion was not shown, such that the provisions of DC 5003 for not for application. For the period in which he was in receipt of a 30 percent rating, the disability was rated in accordance with DC 5055 due to a total knee replacement. For a higher rating to be warranted, there must be evidence of the following: • knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity (60 percent). As noted in the introduction above, the Veteran is separately service-connected for right knee instability per DC 5257, such that this factor is not for consideration here. The Board will now assess each period in turn. July 25, 2006, to April 4, 2007 The Veteran is in receipt of a 10 percent rating for the period of July 25, 2006, to April 4, 2007 per DC 5259 for removal of semilunar cartilage. However, the record contains a January 2007 private X-ray indicative of large joint effusion of the right knee. During this period, he also reported symptoms of knee pain and tenderness causing certain functional impairment, including difficulty with squatting, kneeling, and using stairs. As a result, the Board finds that the evidence supports a 20 percent rating based on pain and effusion into the joint and the appeal is granted to this extent. In the absence of range of motion testing during this appeal period, separate ratings for flexion to 30 degrees or extension to 15 degrees is not warranted. June 1, 2007, to November 26, 2007 A rating in excess of 10 percent is not warranted for the period of June 1, 2007, to November 26, 2007. During this time, the Veteran continued to report mild pain and tenderness of the right knee requiring the use of over-the-counter painkillers. Swelling was later observed following an October 2007 fall. This fall resulted in an anterior cruciate ligament rupture and medial meniscus tear requiring subsequent surgery. However, the symptoms giving rise to an increased rating are absent from the record during this time, including episodes of locking. Further, an October 2007 private X-ray revealed no significant joint effusion, and range of motion testing or reports of functional impairment are absent from the record. Accordingly, the disability picture from June 1, 2007, to November 26, 2007, is best embodied in the criteria for a 10 percent rating per DC 5259, as currently assigned. The appeal is thus denied to this extent. January 1, 2008, to April 18, 2010 A 20 percent rating is warranted for the period of January 1, 2008, to April 18, 2010. Specifically, during the January 2009 VA examination, flexion was reported to 94 degrees with normal extension. Episodes of subluxation and effusion were explicitly denied. However, frequent episodes of locking and pain that caused notable functional impairment were noted, such that he was unable to walk up to one mile and required the constant use of a walker or cane. Reports of these symptoms are additionally present throughout private and VA treatment records. As such, the evidence supports a 20 percent rating, but no more, and the appeal is granted to this extent. Since June 1, 2011 Finally, a 60 percent rating is warranted since June 1, 2011. Following the Veteran’s right knee replacement, the evidence reflects chronic residuals consisting of severe painful motion or weakness in the right leg. During November 2012 and September 2016 VA examinations, he reported severe residual weakness, pain, and limitation of motion following surgery. As a result, he experienced significant functional limitations, such that he required the constant use of assistive devices to assist with ambulation. In September 2016, he was so limited that he had trouble standing or walking for more than five minutes at a time, with additional problems lifting and carrying items and traveling up and down stairs. Accompanying treatment records support this disability picture and report his chronic pain and weakness of the leg. As a result, his disability picture is best embodied in the criteria for a 60 percent rating, and the appeal is granted to this extent. Claims for Right and Left Hip Osteoarthritis Prior to April 30, 2015 The Veteran is seeking ratings in excess of 10 percent prior to April 30, 2015, for right and left hip osteoarthritis. During this time, his disabilities were rated in accordance with DCs 5003-5253. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. Here, the Veteran’s disabilities were rated as impairment of the thigh, which are addressed in DCs 5250 through 5255. For higher ratings, the evidence must show the following: • limitation of extension of the thigh to 5 degrees or less (maximum 10% under DC 5251); • flexion limited to 45 degrees (10% under DC 5252); or • limitation of abduction of the thigh, with motion lost beyond 10 degrees (20% under DC 5253). Other diagnostic codes relating to the hip are DC 5250 (ankylosis), DC 5254 (flail hip joint), and DC 5255 (malunion of the femur). These disorders are not shown in the record for the periods on appeal and application of those diagnostic codes is not warranted. First, increased ratings are not warranted per DC 5253. During December 2014 VA examination, limitation of abduction of the thighs was such that he was unable to cross his legs. However, the examiner did not report that motion was lost beyond 10 degrees due to either disability. Instead, abduction was reported to 25 degrees for the right hip and 20 degrees for the left hip, and remained moderately capable of ambulation. Additional treatment records support this disability picture, such that increased ratings under DC 5253 are not warranted. Further, separate evaluations per DC 5251 and 5253 are not supported by the evidence. During the December 2014 examination, range of motion testing indicated flexion to 115 degrees and extension to 20 degrees for the right hip, and flexion to 100 degrees and extension to 20 degrees for the left hip. Such limitation of motion does not warrant the assignment of separate compensable evaluations per the appropriate diagnostic codes. Regarding the DeLuca factors, the Board has considered the Veteran’s complaints of pain and flare-ups as due to his disabilities, and finds that these symptoms are properly embodied in the rating as assigned. Accordingly, the appeals are denied. Claims for Total Right and Left Hip Arthroplasties Since July 1, 2016 The Veteran is also seeking ratings greater than 30 percent for his right and left hip total arthroplasties after July 1, 2016. During this period, his disabilities were rated in accordance with DC 5054 for hip replacements. According to the rating criteria, increased evaluations are warranted upon evidence of the following: • moderately severe residuals of weakness, pain or limitation of motion (50%). In August 2017, a VA examiner assessed the Veteran as presenting with moderately severe residuals of weakness, pain, or limitation of motion following examination of both hips. As such, he required the regular use of a cane or wheelchair to assist with ambulation, and demonstrated mobility limited to approximately 100 yards. He also reported frequent falls due to bilateral hip weakness, and required the use of opioid medications to assist with managing his pain. Ongoing treatment records support such an understanding of this disability picture, including the Veteran’s ongoing symptoms of severe bilateral hip pain and resulting limitation of motion. These symptoms are best embodied in the criteria for a 50 percent rating, and the appeals are thus granted to this extent. With respect to all the increased rating appeals, the Board has considered the Veteran’s contentions that his disabilities are worse than currently evaluated. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, the Board has offered greater probative value to the medical evidence of record in assessing the severity of his disabilities during the periods on appeal. To the extent that some appeals were denied, the Board has also considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, the Board finds these records to be more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeal is / appeals are denied. Service Connection Claims The Veteran is pursuing appeals for service connection for hypertension and tachycardia. As they require similar analyses, these matters will be addressed simultaneously. At the outset, the Board notes that the Veteran has not advanced a theory of secondary service connection with respect to either appeal, such that this theory will not be addressed. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Turning to the merits, the Board first finds competent evidence of the claimed disorders, as private and VA treatment records reflect a diagnosis of hypertension and tachycardia during the pendency of these appeals. As such, the first element of service connection—a current diagnosis—has been met. However, service treatment records (STRs) do not establish that these conditions were incurred during active duty 1987. Instead, normal clinical evaluations were reported during January and December 1987 physical assessments. Further, treatment records spanning this period of service are silent for diagnoses of these conditions or treatment for their related symptoms. As such, these conditions did not onset during this period of active duty. During a May 2017 informal conference, the Veteran reported that his hypertension and tachycardia started in August 1999, during active duty for training (ACDUTRA) with the National Guard. Under this theory of entitlement, service connection would be warranted if the Veteran was disabled from a disease or injury incurred or aggravated during full-time duty in the Armed Forces performed by Reserves for training purposes, including full-time duty performed by members of the National Guard of any state. 38 U.S.C. § 101(21), (22); 38 C.F.R. § 3.6(c)(1). An August 1999 private treatment record includes an isolated blood pressure reading but it is not indicative of a hypertension diagnosis per VA regulations. See 38 C.F.R. § 4.104, DC 7101, Note 1. In contrast, this record clearly diagnoses the Veteran with tachycardia. However, extensive service personnel records (SPRs) do not establish that he was on ACDUTRA at the time of the August 1999 diagnosis. As such, the evidence does not support this theory of entitlement. Although the SPRs indicate that the Veteran had additional National Guard service within one year of this tachycardia diagnosis, this is not a condition for which presumptive service connection is available. 38 C.F.R. § 3.307(a)(3), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the evidence does not establish that he was diagnosed with hypertension within one year of his separation from service. Accordingly, presumptive service connection is not for application. Finally, an October 1989 STR noted that the Veteran had a heart murmur during childhood. Nonetheless, the evidence does not suggest that this condition persisted through adulthood or was present at the time of enlistment. Even if it were, the STRs are silent for treatment of this disorder during service. Additionally, a heart murmur is medically distinct from tachycardia, such that evidence of a murmur is not evidentiarily pertinent to the existence of tachycardia during service. The Board has considered the Veteran’s lay statements that hypertension and tachycardia are related to service. As above, he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the clinical records and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Earlier Effective Date In claims for increased disability compensation, including a claim for a TDIU, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Here, the earliest date on which the Veteran meets the preliminary schedular criteria for entitlement to a TDIU is May 30, 2008. In a February 2017 rating decision, the Regional Office found that his service-connected disabilities also precluded his substantial and gainful employment at that time. The claim giving rise to this award was submitted in December 2007, prior to the date that entitlement arose. As such, the effective date here is the later of these dates: May 30, 2008, corresponding with the date that entitlement arose. Accordingly, he is in receipt of the earliest effective date under VA laws and regulations. Therefore, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel