Citation Nr: 19124155
Decision Date: 04/02/19	Archive Date: 03/30/19

DOCKET NO. 16-63 254
DATE:	April 2, 2019

ORDER

New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for a bilateral foot disability is granted.

New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for a bilateral elbow disability is granted.

New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for a back disability is granted.

New and material evidence has not been received to reopen a previously denied claim for service connection for a heart disability; thus, the petition to reopen the claim is denied.

The Veteran’s 20 percent rating, for right hip degenerative arthritis, is restored, effective January 1, 2017.

Entitlement to a rating greater than 20 percent, prior to November 21, 2017, for right hip degenerative arthritis, is denied.

Entitlement to a temporary total 100 percent rating for convalescence, beginning November 21, 2017 to January 1, 2019, for right hip replacement, is granted.

Entitlement to a 30 percent rating, status post right hip replacement, beginning January 1, 2019, is granted.

Entitlement to a 20 percent rating, but no higher, for left hip degenerative arthritis, for the period prior to November 6, 2014, is granted.

Entitlement to a rating greater than 30 percent for status post left hip replacement, for the period beginning January 1, 2016, is denied.

Entitlement to a rating greater than 10 percent for right knee degenerative arthritis is denied.

Entitlement to a rating greater than 20 percent for left knee degenerative arthritis is denied.

Entitlement to a rating greater than 10 percent for right ankle degenerative arthritis is denied.

Entitlement to a rating greater than 10 percent for left ankle degenerative arthritis is denied.

Entitlement to a total disability rating based upon individual unemployability (TDIU), is granted.

Entitlement to an earlier effective date, for the assignment of a 20 percent rating a left hip disability is dismissed.

Entitlement to an effective date, earlier than March 6, 2001, for the assignment of a 20 percent rating for service-connected degenerative arthritis of the right hip, is dismissed.

Entitlement to an effective date, earlier than March 6, 2001, for service connection for degenerative arthritis right knee, is dismissed.

Entitlement to an effective date, earlier than April 9, 2010, for the assignment of a 20 percent rating for degenerative arthritis left knee, is denied.

Entitlement to an effective date, earlier than March 6, 2001, for service connection for degenerative arthritis left ankle, is dismissed.

Entitlement to an effective date, earlier than March 6, 2001, for service connection for degenerative arthritis right ankle, is dismissed.

Entitlement to an earlier effective date, for the award of service connection for a bilateral foot disability, is dismissed.

Entitlement to an earlier effective date, for the award of service connection for a bilateral elbow disability, is dismissed.

Entitlement to an earlier effective date, for the award of service connection for a back disability, is dismissed.

Entitlement to an earlier effective date, for the award of service connection for a heart disability, is dismissed.

Entitlement to an earlier effective date, for the award of a TDIU, is dismissed.

REMANDED

1. Entitlement to service connection for a bilateral foot disability is remanded.

2. Entitlement to service connection for a bilateral elbow disability is remanded.

3. Entitlement to service connection for a back disability is remanded.

4. Entitlement to a rating greater than 20 percent for right shoulder degenerative arthritis is remanded.

5. Entitlement to a rating greater than 20 percent for left shoulder degenerative arthritis is remanded.

6. Entitlement to an earlier effective date for an increased rating for right and left shoulder degenerative arthritis is remanded.

FINDINGS OF FACT

1.  Evidence received since the April 2012 and August 2012 decisions denying service connection for a back disability, bilateral foot disability, and bilateral elbow disability relates to an unestablished fact necessary to substantiate the claims or raises a reasonable possibility of substantiating the claims.

2. An unappealed April 2012 rating decision denied service connection for a heart disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that does not relate to an unestablished fact necessary to reopen the claim.

3. For the period prior to November 21, 2017, the evidence does not show by a preponderance of the evidence that the Veteran’s right hip disability improved.

4. For the period prior to November 21, 2017, the Veteran’s right hip manifested with limitation of abduction and functional loss.

5. The Veteran had a total right hip replacement on November 21, 2017 and required convalescence. 

6. Beginning January 1, 2019, the Veteran’s residuals of his right hip replacement did not manifest with moderately severe or markedly severe weakness, pain, or limitation of motion, nor did the Veteran require the use of crutches.

7. For the period prior to November 6, 2014, the Veteran’s left hip manifested with limitation of abduction and functional loss.  

8. For the period beginning January 1, 2016, the Veteran’s left hip manifested with residuals of intermittent pain following his left hip replacement, but no moderately or markedly severe weakness, pain, limitation of motion, or use of crutches.

9. For the entire period on appeal, the Veteran’s left knee disability manifested by 90 degrees of flexion, at its worst, with functional loss due to pain, fatigue, and weakness; but no ankylosis, recurrent subluxation, lateral instability, effusion, dislocated or removal of semilunar cartilage, extension limited to at least 5 degrees, impairment of the tibia and fibula, genu recurvatum, or additional functional loss.

10. For the entire period on appeal, the Veteran’s right knee disability manifested by 110 degrees of flexion, at its worst, with functional loss due to pain and weakness; but no ankylosis, recurrent subluxation, lateral instability, dislocated or removal of semilunar cartilage, effusion, extension limited to at least 5 degrees, impairment of the tibia and fibula, genu recurvatum, or additional functional loss.

11. For the entire period on appeal, the Veteran’s left ankle disability manifested by pain, stiffness, and popping, with normal range of motion, and no evidence of ankylosis, functional loss, malunion of the os calcis or astragalus, or an astragalectomy.

12. For the entire period on appeal, the Veteran’s right ankle disability manifested by pain, stiffness, and popping, with normal range of motion, and no evidence of ankylosis, functional loss, malunion of the os calcis or astragalus, or an astragalectomy.

13. The Veteran’s service-connected disabilities rendered him unable to obtain substantial gainful employment.

14. The Veteran had left hip replacement on November 6, 2014 and was appropriately assigned a temporary total 100 percent rating for a period of 13 months beginning November 6, 2014 until January 1, 2016.

15. An unappealed June 2001 rating decision assigned an effective date of March 6, 2001, for the award of a 20 percent disability rating for service-connected right hip degenerative arthritis, and he has been in receipt of the same rating from March 2001 until November 21, 2017, when he was awarded a temporary total rating due to his right hip replacement.  

16. The Veteran did not appeal the June 2001 rating decision assigning a 10 percent rating for his right knee disability, right ankle disability, and left ankle disability, all effective March 6, 2001, and he has been in receipt of a 10 percent rating for these disabilities since that date with no change in rating.

17. There was no formal or informal claim for an increased rating for left knee degenerative arthritis, prior to April 9, 2010.

18. There is no factually ascertainable evidence that the Veteran’s left knee degenerative arthritis increased in severity prior to April 9, 2010.

19. The Veteran is not service-connected for a right or left foot disability; a right or left elbow disability; a back disability; or a heart disability; thus, his earlier effective date claims for these conditions have no justiciable case or controversy for active consideration by the Board.

20. The Veteran has not been assigned an effective date for his award of a 20 percent rating for his left hip disability prior to November 6, 2014, or his award of TDIU by the decision herein; thus, his earlier effective date claims regarding these issues are premature and have no justiciable case or controversy for active consideration by the Board.

CONCLUSIONS OF LAW

1.  The April 2012 and August 2012 decisions denying entitlement to service connection for a back disability, bilateral elbow disability, and bilateral foot disability are final. 38 U.S.C.§ 7105 (c); 38 C.F.R. §§ 20.1103, 20.204 (2018).

2. New and material evidence has been received to reopen the claims of service connection for a back disability, bilateral elbow disability, and bilateral foot disability. 38 U.S.C. §§ 5104, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018).

3. The April 2012 rating decision denying the claim for service connection for a heart disability is final; and new and material evidence has not been received to reopen the claim.  38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103.

4.  The reduction of the Veteran’s right hip from 20 percent to 10 percent disabling effective January 1, 2017, was not proper.  38 U.S.C. § 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.124a, Diagnostic Code 8045.

5. For the period prior to November 21, 2017, the criteria for a rating greater than 20 percent, for right hip degenerative arthritis, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.103, 3.159, 3.321, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5252, 5253 (2018).

6. The criteria for a temporary total rating, effective November 21, 2017 to January 1, 2019, for convalescence for right hip replacement, have been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400, 3.401, 4.30 (2018).

7. For the period beginning January 1, 2019, the criteria for a 30 percent rating, but no higher, for status-post right hip replacement have been met.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5054 (2018).

8. For the period prior to November 6, 2014, the criteria for a 20 percent rating for degenerative arthritis of the left hip, have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.103, 3.159, 3.321, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5252, 5253 (2018).

9. For the period beginning January 1, 2016, the criteria for a rating greater than 30 percent, for status-post left hip replacement, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5054 (2018).

10. The criteria for a rating greater than 20 percent, for left knee degenerative arthritis, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2018).

11. The criteria for a rating in excess of 10 percent for right knee degenerative arthritis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5256-5263 (2018).

12.  The criteria for a rating in excess of 10 percent for right ankle degenerative arthritis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5271 (2018).

13. The criteria for a rating in excess of 10 percent for left ankle degenerative arthritis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5271 (2018).

14.  The criteria for entitlement to a TDIU have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2018).

15. The Veteran’s freestanding claim seeking an effective date prior to March 6, 2001, for the award of a 20 percent rating for degenerative arthritis of the right hip, lacks legal merit.  38 C.F.R. § 20.101; Rudd v. Nicholson, 20 Vet. App. 296 (2006).

16. The Veteran’s freestanding claim seeking an effective date prior to March 6, 2001, for the award of a 10 percent rating for degenerative arthritis of the right knee, lacks legal merit.  38 C.F.R. § 20.101; Rudd v. Nicholson, 20 Vet. App. 296 (2006).

17. The criteria for an effective date, earlier than April 9, 2010, for the assignment of a 20 percent rating, for left knee degenerative arthritis, have not been met.  38 U.S.C. 5103A, 5107, 5110; 38 C.F.R. 3.102, 3.156, 3.159, 3.400 (2018).

18. The Veteran’s freestanding claim seeking an effective date prior to March 6, 2001, for the award of a 10 percent rating for degenerative arthritis of the right ankle, lacks legal merit.  38 C.F.R. § 20.101 (2018).

19. The Veteran’s freestanding claim seeking an effective date prior to March 6, 2001, for the award of a 10 percent rating for degenerative arthritis of the left ankle, lacks legal merit.  38 C.F.R. § 20.101 (2018).

20. There being no justiciable case or controversy, the appeal for an earlier effective date for the award of service connection for a bilateral foot disability is dismissed.  38 U.S.C. § 7105. 

21. There being no justiciable case or controversy, the appeal for an earlier effective date for the award of service connection for a bilateral elbow disability is dismissed.  38 U.S.C. § 7105.

22. There being no justiciable case or controversy, the appeal for an earlier effective date for the award of service connection for a back disability is dismissed.  38 U.S.C. § 7105.

23. There being no justiciable case or controversy, the appeal for an earlier effective date for the award of service connection for a heart disability is dismissed.  38 U.S.C. § 7105.

24. There being no justiciable case or controversy, the appeal for an earlier effective date for the award of TDIU is dismissed.  38 U.S.C. § 7105.

25. There being no justiciable case or controversy, the appeal for an earlier effective date for the award of a 20 percent rating for the left hip for the period prior to November 6, 2014, is dismissed.  38 U.S.C. § 7105.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from July 1974 to September 1987.

Claims to Reopen

Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C. § 7105 (c).  An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.

New and material evidence is defined as evidence not previously submitted to agency decision makers which bear directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a).  In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.”  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 

Procedural background shows that an April 2012 rating decision and notification letter denied service connection for a heart, bilateral foot, and bilateral elbow disabilities.  Similarly, an August 2012 rating decision denied service connection for a back disability.  As new and material evidence was not received within the one-year period following notification of the decision, and the Veteran did not initiate an appeal of the decision by filing a notice of disagreement, the decisions became final.  38 U.S.C. § 7104 (a); 38 C.F.R. §§ 20.1100 (a), 20.1104.

Since the April 2012 and August 2012 decisions, new evidence has been added to the record.  With regard to the Veteran’s bilateral foot claim, the Board notes that this claim was previously denied on the basis that the Veteran did not have a diagnosed foot disability.  However, in December 2015, a second portion of the Veteran’s service treatment records (STRs) were added to the record which show complaints of pain in his feet.  Additionally, VA treatment records from 2013 show that the Veteran has a diagnosis of neuropathy in his feet, and private treatment records show a diagnosis of neuropathy in his feet as early as 2009.  The Board also notes that despite his denials for lack of a diagnosis, a May 1989 examination shows a diagnosis of degenerative joint disease in his feet, and a diagnosis of flat feet.  Given that the evidence is new and material, the Board finds the evidence sufficient for reopening claim.

Concerning the Veteran’s back disability, the Veteran’s STRs, added to the record in December 2015, show complaints of back pain that appear to be associated with his medical discharge diagnosis of generalized arthritis.  The Board notes that the Veteran has current diagnoses of lumbar strain and degenerative arthritis to his back.  Given the possible correlation between his in-service diagnosis and current diagnoses, the Board finds the evidence new and material, and the claim of service connection for a back disability is reopened.  

Regarding his claim for a bilateral elbow disability, these conditions were denied in an April 2012 decision and notification letter.  Specifically, the Veteran’s right elbow was denied on the basis that his elbow bursitis was not related to service nor was it proximately caused by any of his service-connected conditions.  In contrast, his left elbow was denied as the evidence was absent of a current disability.  Since the last denials, new evidence has been added to the record, to include a February 2012 medical opinion (associated with the record in July 2012) in which the Veteran’s private physician seems to suggest that the Veteran has arthritis in his elbows, or that his generalized arthritis causes pain in his elbows.  Additionally, an October 2015 EMG study shows a diagnosis of neuropathy of the elbow, which appears to be relative to the right elbow; and, an April 2013 treatment record shows a diagnosis of medial epicondylitis to his left elbow.  As the evidence has not been previously considered, and appears to be related to his generalized arthritis, the Board finds the evidence new and material, and the claim is reopened.  

With regards to the Veteran’s claim of service connection for a heart disability, the Board notes that this claim was previously denied in April 2004 on the basis that there was no evidence to support that his heart condition was caused by service.  The Veteran subsequently contended that his heart condition was caused by his service-connected arthritis of his ankles, shoulders, hips, and knees; however, the claim was denied in an April 2012 rating decision given that there was no evidence to support his contention.  

Since the April 2012 decision, new evidence has been added to the record to include the Veteran’s STRs noted above, lay statements from the Veteran, and medical treatment records showing complaints of chest pain and difficulty breathing.  

A review of the Veteran’s STRs shows no records for treatment, complaints, or a diagnosis for a heart disability.  In fact, the Veteran consistently noted “no heart trouble” on his Reports of Medical History.  With regard to his medical treatment records, an April 2013 treatment note shows that the Veteran complained of difficulty breathing.  While a diagnosis of coronary artery disease (CAD) was noted, the Veteran was advised to exercise and encouraged to quit smoking.  There was no further treatment recommended for the Veteran’s CAD, nor was there evidence that his condition was related to service or any of his service-connected arthritic conditions.  In addition, other treatment records show complaints of chest pains, but the Veteran’s stress test was non-ischemic, and an October 2014 x-ray was negative for active chest disease.  Moreover, none of the records show a causal relationship to service or his service-connected arthritic conditions.

While all the afore-mentioned evidence is new, none of the evidence is “new and material” sufficient to reopen the Veteran’s claim as the evidence does not relate to an unestablished fact necessary to substantiate the claim.  Specifically, none of the evidence shows that the Veteran has a heart disability that was caused by service or that was proximately caused by his service-connected degenerative arthritis of shoulders, hips, knees, or ankles.

The Board notes that pursuant to 38 C.F.R. § 3.156 (c), additional relevant service records require reconsideration as opposed to reopening of a previously denied claim.  However, the additional STRs added to the record are not relevant to the Veteran’s claim for a heart disability.  Therefore, readjudication nor reopening of the claim is required based on the additional STRs.  Additionally, the Veteran’s representative has suggested in his May 2014 correspondence that readjudication is required based on treatment records being added to the record which are dated within one year of the April 2012 rating decision.  However, these records are not new, but rather duplicative, as the records merely show the Veteran’s complaint of difficulty breathing and his diagnosis of CAD which have been noted in earlier treatment records and considered in his previous rating decision.  Further, the records do not raise a reasonable possibility of substantiating the claim for direct or secondary service connection.

As a result, the Board finds the criteria for reopening the claim have not been met, and the petition to reopen the claim of service connection for a heart disability is denied.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018).  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2018).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly.  “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.”  Hart, 21 Vet. App. at 509.   

Rating disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited.  38 C.F.R. § 4.14 (2018).  Separate ratings may be assigned without violating the prohibition against pyramiding unless the disorder constitutes the same disability or symptom manifestations.  Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

VA regulations also instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995). 

Functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded.  Schafrath v. Derwinski, 1Vet. App. 589 (1993).  Pain itself does not rise to the level of functional loss as contemplated by VA regulations, but pain may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.  Mitchell v. Skinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995).

1. Entitlement to increased rating for right hip and left hip disabilities.

The Veteran contends a higher rating is warranted for his left and right hip disabilities.  The Veteran’s right hip is evaluated under Diagnostic Code 5003-5252, while the Veteran’s left hip is evaluated under 5010-5252.  

Diagnostic Code 5010, for traumatic arthritis, makes reference to Diagnostic Code 5003, for degenerative arthritis.  Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, with a minimum rating of 10 percent to be assigned for each major joint affected.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003. 

Under Diagnostic Code 5251, which addresses extension, a 10 percent rating is warranted when thigh extension is limited to 5 degrees. 38 C.F.R. § 4.71 (a), Diagnostic Code 5251. 

Under Diagnostic Code 5252, which addresses flexion, a 10 percent rating is assigned when thigh flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; a 30 percent rating is assigned when flexion is limited to 20 degrees; and a 40 percent rating is assigned when flexion is limited to 10 degrees. 38 C.F.R. § 4.71 (a), Diagnostic Code 5252. 

Diagnostic Code 5253 addresses limitations on abduction and adduction of the hip. Under Diagnostic Code 5253, a 20 percent rating is warranted for limitation of abduction of the thigh with motion lost beyond 10 degrees; a 10 percent rating is warranted for limitation of adduction with the inability to cross legs; and, a 10 percent rating is warranted for limitation of rotation with the inability to toe-out more than 15 degrees in the affected leg.  38 C.F.R. § 4.71 (a), Diagnostic Code 5253. 

Normal hip motion is defined as flexion from zero to 125 degrees and abduction from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II.

Left hip

As an initial matter, the Board notes that on November 6, 2014, the Veteran had a total left hip replacement, and was assigned a temporary total 100 percent rating for convalescence, pursuant to Diagnostic Code 5054, from November 6, 2014 to January 1, 2016.  Therefore, as the Veteran received the maximum rating, this period on appeal will not be discussed further.

a)	Period prior to November 6, 2014

For the period prior to November 6, 2014, the Veteran’s left hip was assigned a 10 percent rating pursuant to Diagnostic Code 5010-5252 based on objective evidence of painful motion.  After considering the evidence of record, the Board finds a 20 percent rating is warranted for the period prior to November 6, 2014.  

In support thereof, the Board notes the Veteran’s June 2014 VA examination of his hips where he reported having progressively activity-related hip pain, and flare ups, which limits all ranges of motion, depending on the activity.  Range of motion (ROM) findings showed left hip flexion limited to 100 degrees, with painful motion beginning at 90 degrees; extension was noted as greater than 5 degrees.  The examiner found that abduction was not lost beyond 10 degrees, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees; however, abduction was limited such that the Veteran could not cross his legs.  Although the Veteran was able to perform repetitive use testing with no loss in motion, the examiner found evidence of functional loss, to include, less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, or weightbearing.  The examiner also found pain or localized tenderness on palpation, but no ankylosis.  

Further, prior to his VA examination, the Veteran also complained of increasing pain in his left hip in a March 3, 2014 private treatment visit.  During the visit, he reported that he previously had a light job as a locksmith and would get around on the job by leaning on his rolling cart.  He further reported having pain at a 10 out of 10, and that he had a referral to ortho, but wanted to hold off surgery for his hips.

In September 2014, the Veteran continued to complain of increasing left hip pain to his private physician.  The examiner noted limitation of motion of both hips, much more symptomatic on the left than the right.  The examiner further noted that the Veteran has had chronic problems with his hips, “but this is significantly worse.”   His diagnostic impression was that the Veteran has severe left hip pain with a possible area of avascular necrosis of the left hip.  An October 2014 MRI confirmed the examiner’s impression and revealed left hip avascular necrosis, which resulted in left hip replacement on November 6, 2014.

In light of the above, the Board finds a 20 percent rating, but no higher, is warranted for the period prior to November 6, 2014. 

The Veteran is not entitled to a rating greater than 20 percent as there is no evidence that the Veteran had limitation of motion at 20 degrees or less, nor is there evidence of additional functional loss or any other abnormality, such as ankylosis, flail joint, or impairment of the femur that would warrant a higher rating.

As the Veteran’s left hip showed evidence of functional loss with limited abduction, the provisions of DeLuca have been applied and a 20 percent rating, but no higher, is warranted pursuant to Diagnostic Code 5253, for the period prior to November 6, 2014.  

Period beginning January 1, 2016

For the period beginning January 1, 2016, the Veteran was assigned a 30 percent rating following his total left hip replacement.  This is the minimum rating that can be assigned following his left hip replacement pursuant to Diagnostic Code 5054.  The Veteran is not entitled to a higher rating as this would require moderately or markedly severe residuals of weakness, pain, or limitation of motion, and the evidence does not support a finding of any of these symptoms.  38 C.F.R. § 4.71a, Diagnostic Code 5054 (2018).

In his October 2016 VA examination, range of motion findings showed left hip flexion limited to 115 degrees, extension limited to 30 degrees, and abduction limited to 45 and 25 degrees.  Abduction was not limited such that the Veteran could not cross his legs.  External rotation was limited to 50 degrees and internal rotation was limited to 30 degrees.  The Veteran was only able to partially cross his legs; however, this was due to a large abdominal girth and not hip pathology.  Further, he was able to perform repetitive use testing and repeated use over time with no loss in function.  The examiner found no pain on the exam, no pain with weight-bearing, no pain or localized tenderness on palpation, and that the Veteran’s total left hip replacement in 2014 had residuals of only intermittent pain.  

Subsequent medical records show that the Veteran complained of right hip pain; however, there are no records pertaining to the Veteran’s left hip evidencing residuals of moderately or markedly severe pain, weakness, or limitation of motion.  

Therefore, the Board finds the preponderance of evidence is against finding a rating greater than 30 percent, following his total left hip replacement.  As such, the Board finds the Veteran was appropriately rated at 30 percent, and the claim for a higher rating as of January 1, 2016, is denied.

Right hip

With regard to the Veteran’s right hip, the Board notes that the Veteran was initially rated as 20 percent disabling; however, the Veteran’s rating was reduced to 10 percent, effective January 1, 2017.  

The Board has reviewed the evidence of record and finds that the reduction was improper and the Veteran’s 20 percent rating should be restored.  In addition, the Veteran is entitled to a 100 percent temporary total rating as of November 21, 2017 until January 1, 2019 as the Veteran had right hip replacement surgery.  Thus, staged ratings are appropriate.

	Period prior to November 21, 2017

Concerning the rating reduction, VA must establish, by a preponderance of evidence, that the rating reduction was warranted.  Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995).  A reduction in rating must be based upon review of the entire history of the disability.  Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10 (2018).  VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations.  Faust v. West, 13 Vet. App. 342, 349 (2000).  Finally, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421; see also Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014).  The law further provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished only when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  38 C.F.R. § 3.344 (a).

In the Veteran’s case, the Board finds that the evidence of record, at the time the rating reduction took place, does not show with reasonable certainty that the Veteran’s right hip improved to the extent that the improvement will be maintained under the ordinary conditions of life.  

In the Veteran’s June 2014 VA examination, the Veteran reported having progressively activity-related hip pain.  ROM findings showed right hip flexion limited to 100 degrees, with painful motion beginning at 90 degrees; extension was noted as greater than 5 degrees.  The examiner found that abduction was not lost beyond 10 degrees, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees; however, abduction was limited such that the Veteran could not cross his legs.  While the Veteran was able to perform repetitive use testing with no loss in motion, the examiner found evidence of functional loss, to include, less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, or weightbearing.  

In his November 2015 VA examination, right hip flexion remained limited to 90 degrees, extension limited to 30 degrees, abduction limited to 45 degrees and 25 degrees, and internal and external rotation was limited to 30 degrees each.  In addition, the Veteran could perform repetitive use testing with no loss in function.  Unlike his June 2014 examination, abduction was not limited such that the Veteran could not cross his legs, and the examiner found no additional contributing factors to include fatigue, weakness, lack of endurance, or incoordination.  The examiner also found no evidence of ankylosis, and it was noted that the Veteran does not use an assistive device.  The examiner diagnosed the Veteran with osteoarthritis and avascular necrosis of the right hip, finding that the diagnosis was a progression of the original diagnosis.  The examiner explained that the Veteran has had progression of pain with increased analgesia and decreased range of motion with functional loss.

In the Veteran’s October 2016 examination, findings appear to show improvement in the Veteran’s right hip as range of motion showed flexion limited to 115 degrees and extension was limited to 30 degrees.  Abduction was limited to 45 and 25 degrees, but not limited such that the Veteran could not cross his legs.  In fact, the examiner noted that the Veteran was able to partially cross his legs, but this was due to a large abdominal girth and not hip pathology.  The examiner noted no pain on exam, no evidence of pain with weight-bearing, no pain or localized tenderness on palpation, and no evidence of crepitus.  The Veteran was able to perform repetitive use testing and repeated use over time with no loss in function.

The Board notes that following this examination, the RO reduced the Veteran’s rating to 10 percent in an October 2016 rating decision; however, the Board finds that the totality of the evidence warrants a restoration of the assigned 20 percent rating.  In evaluating the evidence, the Board notes that although the Veteran’s range of motion was not limited to 30 degrees which is necessary for a 20 percent rating, the June 2014 examiner found that the Veteran had limited abduction to the extent that the Veteran could not cross his legs, and functional loss due to less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, or weightbearing.  Additionally, the November 2015 examiner also found evidence of functional loss due to pain; however, the examiner did not provide an estimate of the degrees of loss incurred.  Moreover, the examiner diagnosed the Veteran with right hip avascular necrosis and noted that this was a progression of his disability.  This finding was confirmed in a February 2016 opinion by the Veteran’s orthopedic physician who opined that the Veteran’s avascular necrosis caused his left hip replacement, and the Veteran will likely require a right hip replacement due to the same.  The Board notes that the Veteran ultimately had a right hip replacement in November 2017.

Therefore, despite the improvements shown in the Veteran’s October 2016 VA examination, the evidence considered as a whole did not show with reasonable certainty that the Veteran’s left hip improved to the point that he is was better able to function under the ordinary conditions of life and work.  Considering his June 2014 and November 2015 VA examinations, which continued to show pain and functional loss, in addition to, the private physician’s opinion noting that right hip surgery would likely be forthcoming, and the fact that the Veteran’s rating had been in effect for 15 years, the Board finds the evidence in its entirety was not sufficient to warrant a rating reduction.  Accordingly, the Veteran’s 20 percent rating for right hip degenerative arthritis is restored effective January 1, 2017.

The Veteran is not entitled to a rating greater than 20 percent as there is no evidence that the Veteran had limitation of motion at 20 degrees or less, additional functional loss, or any other abnormality, such as ankylosis, flail joint, or impairment of the femur that would warrant a higher rating.

	Period beginning November 21, 2017

The Board also finds a temporary total rating is warranted as of November 21, 2017 for convalescence as the Veteran had right hip replacement.

Under Diagnostic Code 5054, a 100 percent disability rating is assigned for one year following the implantation of a hip prosthesis. The 100 percent rating for one year following surgery commences after the initial grant of a one-month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge.  38 C.F.R. § 4.71a, Diagnostic Code 5054 (Note 2).  The convalescent rating under 38 C.F.R. § 4.30 is effective from the date of admission and continues for a period of one month from the first day of the month following discharge.    

Thereafter, the minimum disability rating that may be assigned post-hip replacement is 30 percent. A 50 percent disability rating is assigned for moderately severe residuals of weakness, pain, or limitation of motion. A 70 percent disability rating is assigned for markedly severe residuals of weakness, pain, or limitation of motion.  A 90 percent disability rating is assigned for residuals of painful motion or weakness such as to require the use of crutches.  38 C.F.R. § 4.71a, Diagnostic Code 5054.

Here, the evidence shows that the Veteran had a right hip replacement on November 21, 2017 and was discharged November 23, 2017.  Pursuant to Diagnostic Code 5054 discussed above, the Veteran is entitled to a 100 percent rating from November 21, 2017 to January 1, 2019.  As this is the maximum rating available, no further discussion is necessary for this period.  

As of January 1, 2019, the Veteran is entitled to the minimum 30 percent rating as the evidence is absent of any medical records dated after the Veteran’s one-year period of convalescence.   Given that there is no evidence to show moderately severe or markedly severe residuals of weakness, pain, or limitation of motion, the Veteran is entitled to a 30 percent rating, but no higher, beginning January 1, 2019.

2. Entitlement to ratings greater than 10 percent for right knee degenerative arthritis, and greater than 20 percent for left knee degenerative arthritis.  

The Veteran is seeking increased ratings for both his right and left knee disabilities.  The Veteran’s right knee has been evaluated pursuant to Diagnostic Code 5003-5260, and his left knee has been evaluated pursuant to Diagnostic Codes 5260-5261.  

As discussed above, arthritis is rated on the basis of limitation of motion for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1.

The appropriate diagnostic codes for rating limitation of motion of the knees are Diagnostic Codes 5260 and 5261.  38 C.F.R. § 4.71a.  Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.  

Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and non-compensable where flexion is limited to 60 degrees.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and non-compensable where extension is limited to 5 degrees.  38 C.F.R. § 4.71a.

The Board notes that assigning multiple ratings for the Veteran’s knee disabilities based on the same symptoms or manifestations would constitute prohibited pyramiding.  38 C.F.R. § 4.14 (2018). 

Separate ratings for knee disabilities may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping.  See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. 

Under Diagnostic Code 5259, a 10 percent rating can be assigned for symptomatic removal of semilunar cartilage.  38 C.F.R. § 4.71a.  Under Diagnostic Code 5258, a 20 percent evaluation can be assigned for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint.  Id.  Recurrent subluxation or lateral instability can be rated as slight (10 percent), moderate (20 percent), or severe (30 percent).  38 C.F.R. § 4.71a, Diagnostic Code 5257.

With regard to the merits of the Veteran’s claims, the evidence shows that the Veteran received a VA examination for his knees in June 2016.  The Veteran reported having surgery to his left knee in 2003, and that his right knee pops, but not to the extent that surgery is necessary.  The Veteran further reported that he has not had any treatment to either knee since 2003, and that he takes tramadol for general pain.

Upon examination of the Veteran’s right knee, range of motion findings were normal.  Pain was noted during flexion, but pain did not cause functional loss.  There was no evidence of pain with weight-bearing, but there was evidence of tenderness to palpation along the lateral patella border.  With respect to the Veteran’s left knee, range of motion was also found to be normal.  There was no pain noted on examination, no pain with weight-bearing, and no pain or tenderness to palpation.  The Veteran was able to perform repetitive use testing with no loss in function or range of motion; there was no inflammation, effusion, locking, crepitus, or popping, all bilaterally.  The examiner further noted that pain, fatigue, weakness, or incoordination would not limit the Veteran’s functional ability with repeated use over time nor during flare-ups.  Bilaterally, muscle strength testing was normal, joint stability testing was normal, and there was no evidence of ankylosis, meniscal conditions, or any other abnormality.  An x-ray showed mild degenerative changes for the right knee, and grossly unremarkable for the left knee.  

In August 2018, the Veteran received a second VA examination for his knees where he reported having problems with his left knee for two weeks.  Specifically, the Veteran reported that his knee began locking up on him requiring him to use a cane for a few days.  He reported that his last ortho visit was 12-14 years ago.  The Veteran reported flare-ups occur two times a week where it feels his knee is going to give out.  Range of motion findings showed right knee flexion limited to 120 degrees, and extension limited to 0 degrees.  The examiner noted pain with flexion, but pain does not cause functional loss, nor was there evidence of pain with weight-bearing.  The examiner further noted mild pain with palpation of the medial and lateral joint line and crepitus.

With respect to the left knee, range of motion findings showed flexion limited to 110 degrees, and extension limited to 0 degrees.  The examiner noted pain with flexion, but pain does not cause functional loss.  The examiner also noted moderate pain with patellar grind; mild to moderate pain with palpation, pain with weightbearing, non-weightbearing, pain in passive range of motion, and crepitus.  After repetitive use testing, the Veteran exhibited loss of function with range of motion being decreased to 110 degrees flexion and 0 degrees extension due to pain and weakness for his right knee, and a reduction in loss to 90 degrees flexion and 0 degrees in extension due to pain, fatigue and weakness.  

The examiner found a reduction in muscle strength, bilaterally, due to the Veteran’s right and left hip replacements, but no additional contributing factors to the Veteran’s bilateral knee disabilities such as swelling, atrophy of disuse, instability, disturbance of locomotion, interference with sitting or standing; nor was there evidence of ankylosis or any meniscal conditions for either knee.  

Considering the above and remaining evidence, the Board finds that a rating greater than 10 percent is not warranted for the Veteran’s right knee, and a rating greater than 20 percent is not warranted for the Veteran’s left knee at any time during the appeal period as the Veteran’s knee disabilities have not resulted in limitation of motion or other functional limitations that would warrant a higher rating.  38 C.F.R. § 4.71, Diagnostic Codes 5260, 5261. 

The Board notes that there are no complaints or treatment of record pertaining to the Veteran’s knees.  The objective medical evidence of record shows that the Veteran’s bilateral knee disability did not worsen to the extent that a higher rating is warranted.   As evidenced in his June 2016 VA examination, the Veteran was found to have normal range of motion for both knees.  Although the Veteran exhibited pain in his right knee during flexion, pain did not cause functional loss.  In addition, x-ray findings showed mild changes of osteoarthrosis, while the left knee was found to be unremarkable.  

Similarly, in his August 2018 VA examination, the Veteran complained of left knee pain and was found to have a decrease in range of motion bilaterally; however, even with functional loss, the Veteran’s ROM findings were limited to 110 degrees flexion for the right knee, and 90 degrees flexion for the left knee, with extension at 0 degrees, bilaterally.  Moreover, the examiner found no other contributing factors such as swelling, atrophy of disuse, instability, disturbance of locomotion, interference with sitting or standing, and his reduction in muscle strength was found to be due to the Veteran’s right and left hip replacements.  

The Board recognizes that the Veteran’s private physician noted in a February 2012 medical opinion that the Veteran has severe bilateral knee pain; however, the opinion did not solely pertain to the condition of the Veteran’s knees, but rather, suggested that the Veteran’s progressive arthritis caused pain in his knees, as well as, his back, elbows, and shoulders.  Furthermore, there are no records from the physician showing specific treatment to the Veteran’s knees.  

The Board also finds that the Veteran’s own statements support the conclusion that the Veteran’s knees have not worsened to the extent that a higher rating is warranted.  For example, in his June 2016 VA examination, the Veteran reported that he has not had any treatment to either knee since 2003.  The Veteran reiterated this notion in his August 2018 VA examination reporting that his last ortho visit was 12-14 years ago.  The Board also notes that a March 2013 VA primary care note revealed that the Veteran had not been seen in primary care for greater than eighteen months.  Further, in a September 2014 private physician visit for his back, the examiner noted that the Veteran has limitation of his knees with flexion and extension, but that this does not seem to cause the pain for which he is seeking treatment for.  Likewise, in November 2014, while admitted for left hip surgery, the examiner found no acute symptoms from his knees.

In light of the above, the Board finds a higher rating for his right or left knee is not warranted as the Veteran did not have limitation of motion or additional functional loss that would warrant a higher rating.  Furthermore, any functional loss incurred has already been contemplated in the Veteran’s assigned 10 percent rating for his right knee, and 20 percent rating for his left knee. 

The Board has also considered other diagnostic codes pertaining to the Veteran’s knee disabilities; however, the evidence does not support a separate evaluation under any other diagnostic code at any time during the appeal period.  Although the Veteran reported popping, locking, and that his knees are going to “give out,” there is no evidence of any meniscal condition, instability, subluxation, or ankylosis.  Nor is there evidence of impairment of the tibia or fibula or genu recurvatum. Thus, compensation under any of the other Diagnostic Codes governing evaluation of the knee are not applicable.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263 (2018). 

The Board also notes that while the Veteran is currently in receipt of compensable ratings, his current findings do not support a compensable rating for limitation of motion under 38 C.F.R. § 4.71, Diagnostic Codes 5260, 5261 and suggest that the Veteran’s bilateral knee conditions have improved as the Veteran’s ROM findings have been, at worst, limited to 110 degrees flexion for the right knee, and 90 degrees flexion for the left knee, inclusive of functional loss.  

As such, the Board finds the preponderance of evidence weighs against the claim and the Veteran’s claims for ratings greater than 10 percent for right knee degenerative arthritis, and 20 percent for his left knee degenerative arthritis is denied.

3. Entitlement to a rating greater than 10 percent for degenerative arthritis of right ankle and left ankle.

The Veteran is seeking a rating greater than 10 percent for degenerative arthritis of his left and right ankles.  The Veteran’s ankles have been rated pursuant to Diagnostic Code 5010-5271 for traumatic arthritis of the ankle, with limitation of motion. 

As noted previously, traumatic arthritis is recognized under Diagnostic Code 5010 and is rated under Diagnostic Code 5003 on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 

Diagnostic Code 5271 provides a 10-percent rating for moderate limitation of motion, and a 20-percent rating for marked limitation of motion.  38 C.F.R. § 4.71a. 

Normal range motion of the ankle, for VA compensation purposes, is from zero degrees ankle dorsiflexion to 20 degrees ankle dorsiflexion and from zero degrees ankle plantar flexion to 45 degrees ankle plantar flexion. 38 C.F.R. § 4.71a, Plate II (2018). 

The descriptive words “mild,” “moderate,” and “marked” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.”  38 C.F.R. § 4.6.

In June 2016, the Veteran received a VA examination for his ankles where the Veteran reported that his ankles and lower legs have neuropathy.  He further reported that his shins and ankles hurt most of the time, and that his ankles pop when he walks.  He reported flare-ups of stiffness and popping, and that he wears a high-quality supportive shoe.  Range of motion findings were normal for both his right and left ankles.  There was no evidence of pain with weight-bearing, no evidence of crepitus, and the Veteran was able to perform repetitive use testing with no loss of function or range of motion.  The examiner found mild tenderness with palpation at the anterior talofibular (ATF) for the right ankle, and trace edema and mild erythemic appearance to the skin, bilaterally; but no definitive inflammation or infective process.  

For both ankles, the examiner also found non-painful active range of motion, no ligament laxity, locking, popping, joint effusion, tendonitis, or synovitis.  The Veteran reported a mild generalized sensitivity to light touch of his feet and the lower one-third of his legs, but the examiner found no focal findings or tenderness.  The examiner further found no reduction in muscle strength, no muscle atrophy, and no ankylosis; however, the examiner noted ankle instability or dislocation was suspected, bilaterally.  The examiner did not find a diagnosed ankle disability.

Considering the above and remaining evidence, the Board finds an increased rating is not warranted for either the Veteran’s left or right ankle. The evidence shows that the Veteran’s ankles manifested with pain and stiffness but no limitation of motion.  Although the examiner noted that functional loss could not be determined during a flare-up or after repetitive use without resorting to speculation, the examiner found that pain, weakness, fatigability, or incoordination would not significantly limit the Veteran’s functional ability during flare-ups, nor with repetitive use over time.  

The Board has also considered the Veteran’s subjective complaints of symptoms in his ankles, such as popping and stiffness, but the competent evidence does not establish that such complaints translate into functional limitation not compensated by the assigned 10 percent ratings.  In fact, during his examination, the examiner found no evidence of locking, popping, joint effusion, tendonitis, synovitis or ankylosis, and the Veteran had normal range of motion.  The Board recognizes that the examiner suspected ankle instability, bilaterally; however, any instability the Veteran may have had did not cause functional limitation, as evidenced by his normal range of motion findings.  Further, the evidence shows that the Veteran did not use an assistive device as a normal mode of locomotion.  Moreover, there is no other objective medical evidence of record showing that the Veteran’s functional ability was limited due to instability. 

The Board has also considered whether higher evaluations are available under other provisions of the code.  However, the Veteran’s ankles have not shown any other factors that would warrant evaluation of the disabilities under other provisions of the rating schedule.  Specifically, the Veteran is not shown to have ankylosis of the right or left ankle to warrant an evaluation under Diagnostic Code 5270.  See 38 C.F.R. § 4.71a.  In addition, there is no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy to warrant ratings under Diagnostic Codes 5270-5274. Id. 

Consequently, the Board finds a higher rating is not warranted as the Veteran exhibited pain only, with stiffness and popping.  The Veteran’s range of motion of his right and left ankles was normal, and no additional functional loss was exhibited due to pain, fatigue, weakness, or incoordination.  Any functional loss the Veteran may have incurred has already been contemplated in his assigned 10 percent rating. 

As all potentially applicable diagnostic codes have been considered, the Board finds the preponderance of the evidence is against a rating greater than 10 percent for the Veteran’s service-connected right and left ankle disabilities. As such, the benefit-of-the-doubt doctrine is inapplicable.  38 C.F.R. § 4.3.  For these reasons, the claim for a rating greater than 10 percent for a bilateral ankle disability is denied.

Earlier Effective Dates

The Veteran is seeking an earlier effective date for his claims of increased ratings for degenerative arthritis of the bilateral hips, bilateral knees, and bilateral ankles.  The Veteran further contends an earlier effective date is warranted for his claims of service connection for a bilateral foot disability, bilateral elbow disability, back disability, heart disability, and entitlement to a TDIU.

As an initial matter, the Board notes that the increases for the Veteran’s left and right hip related to his left and right hip replacement surgeries and the periods thereafter constitute staged ratings, and are part of the evaluation of the increased rating claims. The explanations for the ratings and the dates they are assigned are addressed as part of the evaluation of his increased rating claims, and if challenged, are appealable on that basis, but not as part of an effective date challenge to the date of his increased rating claim. 

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2018).  The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, it shall be the date of receipt of the claim.  38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (“It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.”); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an “increase” for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998).

As a general matter, “absent a showing of [clear and unmistakable error, a veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”  Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); see also 38 C.F.R. § 3.400 (q)(2) (where new and material evidence is received after a final disallowance, the effective date is the date of receipt of the new claim or date entitlement arose, whichever is later).

Applicable regulation also provides that, if new and material evidence was received during an applicable appellate period following a RO decision (one year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  38 C.F.R. § 3.156 (b); see also Young v. Shinseki, 22 Vet. App. 461, 466 (2009).  Thus, under 38 C.F.R. § 3.156 (b), “VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “New and material evidence” under 38 C.F.R. § 3.156 (b) has the same meaning as “new and material evidence” as defined in 38 C.F.R. § 3.156 (a). See Young, 22 Vet. App. at 468.

A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a).  Prior to March 24, 2015, informal claims were recognized.  Any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim.  38 C.F.R. § 3.155 (2017).  An informal claim must identify the benefit sought.

Additionally, in Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the Court held that once a decision establishing an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error. The Court noted that any other result would vitiate the rule of finality. Accordingly, the Court found that there can be no valid freestanding claim for an earlier effective date.  Therefore, if a freestanding claim for an earlier effective date is raised, an appeal in the matter should be dismissed.

Left knee

The Veteran seeks an earlier effective date for his assigned 20 percent rating for left knee degenerative arthritis.  

Factual background shows that the Veteran was initially assigned a 10 percent rating for left knee degenerative arthritis in a June 2001 rating decision effective March 6, 2001.  The Veteran did not timely appeal the decision, nor did he submit new and material evidence within the one-year appeal period. Therefore, the decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103.  In an April 2004 rating decision, the Veteran was denied an increased rating for his left knee arthritis.  The Veteran did not appeal the decision, nor was new and material evidence received during the appeal period.  Hence, the rating decision also became final.  

In July 2011, the Veteran filed a claim for an increased rating for his left knee degenerative arthritis.  A 20 percent rating, effective April 9, 2010, was granted in an April 2012 rating decision.  New and material evidence was received within one year of the April 2012 rating decision; therefore, the decision is not final.

As noted above, the effective date for an increased rating is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability occurred, if a claim is received within one year from such date; otherwise, the effective date for the increased rating is the date the claim for increase was received or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

Here, the Veteran filed a claim for an increased rating for left knee arthritis in July 2011.  There is no evidence of a formal or informal claim for an increased rating of his left knee after his April 2004 rating decision and prior to his July 2011 claim.  The Board notes, however, that the Veteran’s assigned effective date is April 9, 2010, which corresponds to the date the Veteran filed a claim for an earlier effective date for his assigned evaluations of his left knee and other service-connected arthritic conditions; however, there is no claim for an increased rating of his left knee on this date.  

While the date of April 9, 2010 does not represent the Veteran’s actual date of claim for an increased rating, it does represent the earliest possible effective date available as there is no evidence of a formal or informal claim for an increased rating of his left knee after his April 2004 rating decision and prior to April 9, 2010.  In addition, there is no factually ascertainable evidence of treatment or complaints for his left knee prior to April 9, 2010.  Even assuming arguendo that evidence of treatment existed at least one year prior to his July 2011 claim for an increase, the one year would have occurred after his assigned effective date of April 9, 2010.

Therefore, as there is no evidence of a claim being filed earlier than April 9, 2010, nor is there factually ascertainable evidence showing an increase in severity prior to said date, an effective date prior to April 9, 2010, is not available and the provisions of section 3.400(o)(2) do not apply.  Accordingly, the Veteran’s earlier effective date claim for left knee degenerative arthritis is denied.

Earlier Effective Dates- bilateral ankles, right knee, bilateral hips

a)	Right and left Ankles

The Veteran is not entitled to an earlier effective date for his assigned 10 percent ratings with respect to his right and left ankle degenerative arthritis.  The Veteran was previously assigned a 10 percent rating for degenerative arthritis of the right and left ankle in a June 2001 rating decision effective March 6, 2001.  The Veteran did not appeal this decision; therefore, the decision is final.  

In an April 2012 rating decision, the Veteran’s July 2011 increased rating claims for his right and left ankle degenerative arthritis were denied.  The Veteran was notified, given his appellate rights, and did not proceed to appeal the denials of an increased rating.  New and material evidence as to the claims was also not received during the appeal period.  Hence, the rating decision became final.  38 C.F.R. §§ 3.156, 20.201, 20.302, 20.1103 (2006).  Thus, these claims are not pending.   

In fact, the Veteran has been in receipt of a continuous 10 percent rating since March 6, 2001.  There has been no effective date assigned since the June 2001 rating decision with regard to the Veteran’s bilateral ankle disabilities which could be challenged. To the extent that the Veteran is challenging the effective date of his initial award of a 10 percent rating from June 2001, the Board notes that the Veteran did not appeal the June 2001 rating decision, nor has he alleged that the decision was clearly and unmistakably erroneous.  As explained above, an effective date cannot be challenged with a freestanding earlier effective date claim.  Rudd v. Nicholson, 20 Vet. App. 296 (2006).  As such, his collateral attack on the finality of the June 2001 decision must be dismissed as a matter of law.  See Rudd, supra.

b)	right knee

With regard to the Veteran’s right knee, the Veteran was assigned a 10 percent rating for right knee degenerative arthritis in a June 2001 rating decision, effective March 6, 2001.  As noted above, this decision was not appealed and became final.

In April 2004 and April 2012 rating decisions, the Veteran’s increased rating claims for right knee degenerative arthritis was denied.  The Veteran was notified, given his appellate rights, and did not proceed to appeal the denials of an increased rating.  Although the Veteran’s attorney contends that new and material evidence was submitted within one year of the April 2012 rating decision; thus, requiring adjudication of the claim, the Board disagrees, but nonetheless, even if this were so, it is irrelevant.  Even if new and material evidence was received, the April 2012 rating decision denied the Veteran’s increased rating claim and did not assign an effective date.  Therefore, there is no effective date to challenge other than his initially assigned effective date from the June 2001 rating decision which granted a 10 percent rating.   

In the Veteran’s case, he has been in receipt of a continuous 10 percent rating since March 6, 2001.  No effective date has been assigned since this decision, thus there is no effective date to challenge relating to the right knee since this decision. To the extent that the Veteran is challenging the effective date of his initial grant of a 10 percent rating from June 2001, the Board notes that the Veteran did not appeal the June 2001 rating decision, nor has he alleged that the decision was clearly and unmistakably erroneous.  Therefore, his collateral attack on the finality of the June 2001 decision must be dismissed as a matter of law.  See Rudd, supra.

c)	Right hip

With respect to the Veteran’s right hip, an earlier effective date is not warranted at any time during the appeal period.  The Board notes that the Veteran was assigned a 20 percent rating, effective March 6, 2001 in the June 2001 decision.  In an April 2012 rating decision, the Veteran’s claim for an increased rating for his right hip disability was denied.  New and material evidence as to the claim was not received during the appeal period.  Hence, the rating decision became final.  38 C.F.R. §§ 3.156, 20.201, 20.302, 20.1103 (2006).  

In the decision herein, the Board has restored the Veteran’s 20 percent rating, effective January 1, 2017.   The restoration of the Veteran’s 20 percent rating has provided the Veteran a continuous 20 percent rating from March 6, 2001 until November 21, 2017, when the Board has granted a temporary total rating of 100 percent based on his total hip replacement. As discussed above, the November 21, 2017, date for his total rating, and the date assigned for his subsequent 30 percent rating, are part of the increased rating on appeal to the Board, and not relevant to the effective date claim at issue here, as they are not related to any discussion about the date his claim for an increased rating was received. Relevant to that discussion is the fact that the Veteran has had a 20 percent rating for his right hip since March 6, 2001, with no effective dates to challenge. 

To the extent that the Veteran is attempting to seek an effective date prior to March 6, 2001, the Board notes that the Veteran did not perfect an appeal as to the June 2001 rating decision that assigned a March 6, 2001 effective date for his 20 percent rating.  Therefore, the decision is final.  In addition, the Veteran has not made a specific allegation of clear and unmistakable error with respect to the June 2001 rating decision.  As such, his collateral attack on the finality of the June 2001 decision must be dismissed as a matter of law.  See Rudd, supra.

d) Left hip

With respect to the Veteran’s left hip, the Board notes that the Veteran was initially  assigned a 10 percent rating, effective March 6, 2001, in the aforementioned unappealed June 2001 decision.  In the decision herein, the Veteran has been granted a 20 percent rating for his left hip disability, prior to November 6, 2014.  As the effective date for the assigned 20 percent rating has not been promulgated in a rating decision by the RO, the Veteran’s earlier effective date claim for the award of the 20 percent rating prior to November 6, 2014 is premature.  

As discussed above, the date for his temporary total rating due to his left hip replacement, November 6, 2014, and the date assigned for his subsequent 30 percent rating, are part of the increased rating on appeal to the Board, and not relevant to the effective date claim at issue here, as they are not related to any discussion about the date his claim for an increased rating was received.

In any case, under Diagnostic Code 5054, replacement of the hip with a prosthesis warrants a 100 percent schedular evaluation for a one-year period following implantation of the prosthesis.  Note (1) indicates that the 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of the 1-month total rating assigned under §4.30 following hospital discharge.  Thus, a 100 percent rating is automatically assigned for a maximum 13-month period after a hip replacement.  38 C.F.R. § 4.71a, Diagnostic Code 5054.  After the 13-month period at 100 percent ends, a minimum of 30 percent is assigned, unless symptomatology warrants a higher rating.  

Here, the Veteran had surgery to his left hip and was appropriately assigned a 100 percent rating for a period of 13 months beginning November 6, 2014, the date of his surgery, until January 1, 2016.  Therefore, as the Veteran’s surgery took place on November 6, 2014, this would be the earliest date entitlement arose for a 100 percent rating.  The Veteran’s 100 percent rating lasted for a period of 13 months to January 1, 2016 as required by the regulation.  

Likewise, the Veteran is not entitled to an earlier effective date for his assigned 30 percent rating beginning January 1, 2016, as Diagnostic Code 5054 requires a minimum 30 percent rating, unless symptomatology warrants a higher rating.  In fact, an earlier effective date would not benefit the Veteran as he was already assigned a 100 percent rating for the prior rating period.  Additionally, the Board has found in the decision herein, that the evidence does not support a rating greater than 30 percent as of January 1, 2016.

Accordingly, the Veteran’s claims for an earlier effective date for his left hip disability is dismissed because there is no justiciable case or controversy for the Board to address since there has been no effective date assigned for the awarded 20 percent rating for the left hip disability.    

Earlier Effective Dates- bilateral foot disability, bilateral elbow disability, back disability, heart disability, and TDIU.

With respect to the Veteran’s claims of an earlier effective date for service connection of a bilateral foot disability, bilateral elbow disability, back disability, heart disability, the Board notes that the Veteran has not been granted an award of service connection for these claims; therefore, no effective date or evaluation can be assigned.  Similarly, while the Veteran’s claim of TDIU has been granted in the decision herein, his claim for an earlier effective date is premature as an effective date has not yet been assigned for the award of TDIU.  Thus, there is no effective date to challenge with regard to his service connection claims or his effective date claim for a TDIU.

Accordingly, the appeals with regard to an earlier effective date for the Veteran’s claims of a bilateral foot disability, a bilateral elbow disability, a back disability, a heart disability, and TDIU are dismissed as there is no justiciable case or controversy for the Board to decide.  38 U.S.C. § 7105.  The Veteran’s appeals, with regard to his claims of service connection for a bilateral foot, bilateral elbow, and back disabilities are further addressed in the remand portion of the decision herein.

TDIU

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16.  Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992).  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16 (a) (2018).

A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment.  If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability.  If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16 (a).

The Veteran seeks entitlement to TDIU on the basis of his service-connected disabilities.  For the relevant period, the Veteran was service-connected for the following disabilities:  degenerative arthritis, left hip status post left hip replacement, rated at 10 percent disabling from March 6, 2001, 100 percent disabling from November 6, 2014 to January 1, 2016, and 30 percent disabling from January 1, 2016; degenerative arthritis right hip, rated at 20 percent disabling from March 6, 2001, and 10 percent disabling from January 1, 2017; degenerative arthritis right and left ankle, each rated at 10 percent disabling; degenerative arthritis right knee, rated at 10 percent disabling from March 6, 2001; degenerative arthritis left knee, rated at 10 percent disabling from March 6, 2001, and 20 percent from April 9, 2010; degenerative arthritis right and left shoulders, each rated at 20 percent disabling; and residual right inguinal hernia with a non-compensable rating.  The Veteran has a combined disability evaluation of 80 percent from April 9, 2010; thus, the Veteran meets the basic percentage requirements for consideration of TDIU under 38 C.F.R. § 4.16 (a).

For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating.  The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

A review of the evidence shows that in the Veteran’s application for TDIU (VA Form 21-8940), he reported that he last worked in May 2014.  The application also reflects that he has two years of college, and that he attended numerous engineering schools from the U.S. Navy.

The evidence also shows various VA examinations for the Veteran’s service-connected arthritic conditions.  With regard to the Veteran’s service-connected hip disabilities, the Board notes the Veteran’s June 2014 VA examination where the Veteran reported that his hip disabilities affect his ability to work in that he has pain from sitting and cannot run or go up and down steps.  He further reported being forced to retire due to his low back issues.  Additionally, in his November 2015 examination for his hips, the examiner noted that the Veteran’s employment status would be affected due to pain and decreased mobility with sitting, walking, climbing, and squatting.  Likewise, in his October 2016 examination, the examiner noted the Veteran would have difficulty with walking on uneven terrain, running, jogging, or walking for extended periods of time or long distances.

Alternatively, in his June 2014 and November 2015 shoulder examinations, the examiner did not indicate any functional impairments.  However, in an October 2016 VA examination, the examiner noted the Veteran’s shoulders impact his ability to work as he would have difficulty with moderate to heavy lifting and overhead work.

In his June 2016 ankles and knees examinations, the examiner noted that the conditions would impact employment; however, the examiner did not particularly indicate how his ankles or knees would impact his employment.  Rather, the examiner noted that other conditions such as his back and neuropathy contribute to his employability.  In contrast, an August 2018 examination noted that the Veteran’s knee disabilities impact employment due to pain with prolonged ambulation and standing.

The Board also observes that the Veteran’s private physicians have opined as to the severity of his conditions and their impact on employability.  For example, in a February 2012 opinion, the Veteran’s private physician, by the name of Dr. S.B., noted that the Veteran has severe and intractable pain, and decreased mobility, secondary to progressive arthritis, to include back, elbow, bilateral knee, and shoulder pain.  He further noted that the Veteran’s arthritis is chronic and progressive and will cause disability forever.  Additionally, in a March 2014 treatment record, Dr. R.P. opined that the Veteran cannot work in a competitive work environment.  

Based on the above, the Board finds that the preponderance of evidence weighs in favor of an award for TDIU.  The evidence shows that the Veteran’s service-connected hip disabilities cause decreased mobility with sitting, walking, climbing, and squatting, while the Veteran’s service-connected shoulder disabilities impact his ability to perform moderate to heavy lifting and overhead work.  Likewise, the Veteran’s service-connected knee disabilities impact employment due to pain with prolonged ambulation and standing.  The Board notes that this evidence clearly shows that the Veteran’s service-connected disabilities prevent him from obtaining physical employment.  

While the Veteran’s ability to perform sedentary employment may be questionable, the Board notes that his private physician opined that the Veteran’s arthritic conditions are chronic and progressive.  Notably, the Veteran had left hip replacement surgery in 2014, and surgery to his right hip in 2017.  Additionally, the Veteran had bilateral shoulder surgery in 2016.  The Board further notes that in the Veteran’s Disability Determination Explanation for Social Security Administration (SSA) benefits, it was noted that the Veteran is able to tolerate sedentary to some light duties, but for a very limited time.  

The Board recognizes that the Veteran’s SSA records show that his primary impairments were found to be due to his back, neuropathy, and obesity; however, his Disability Determination shows that all of the Veteran’s arthritic conditions were considered in granting SSA benefits.  Furthermore, while SSA benefits are not determinative in awarding a TDIU, the medical evidence concerning his arthritic conditions is relevant to the Veteran’s TDIU claim.

Considering the evidence as a whole, the Board finds the preponderance of evidence indicates that the Veteran’s service-connected disabilities preclude the Veteran from obtaining gainful employment.  As such, the Veteran’s claim for TDIU is granted.  

REMANDED ISSUES

1. Entitlement to service connection for a bilateral foot disability.

2. Entitlement to service connection for a bilateral elbow disability.

3. Entitlement to service connection for a back disability.

As explained previously, the Veteran’s claims of service connection for bilateral foot, bilateral elbow, and a back disability, have been reopened.  The evidence shows that the Veteran has current diagnoses of lumbar DDD, lumbar strain, lumbar radiculitis, bilateral foot neuropathy, right elbow neuropathy, medial epicondylitis of his left elbow, and degenerative polyarthritis.  In a February 2012 medical opinion, the Veteran’s private physician suggested, in relevant part, that the Veteran’s back and elbow disabilities are related to his progressive arthritis.   

The Board notes that the Veteran was medically discharged from service with a diagnosis of generalized arthritis as the Veteran had numerous complaints of pain to his feet, back, hips, shoulders, neck, et al.  Given the possible correlation, the Board finds a VA examination and opinion is warranted to determine the etiology of the Veteran’s bilateral foot, bilateral elbow, and back disabilities.  McClendon v. Nicholson, 20 Vet. App. 79 (2006).  

The Board recognizes that the Veteran was given an examination of his back in July 2012 in which the examiner found that the Veteran’s back disability was not related to service; however, the Board finds the opinion inadequate.  The Board notes that the examiner did not diagnose the Veteran with a back disability; but rather, found that his condition was mechanical in nature.  However, the evidence shows diagnoses of lumbar DDD and lumbar strain.  Therefore, as the examiner’s findings conflict with the evidence of record, the Board finds an opinion is warranted to reconcile the previous diagnoses of record and the July 2012 examiner’s findings.  

In obtaining new examinations, the AOJ is advised that an opinion on aggravation should be obtained as the evidence suggests that the Veteran’s in-service generalized arthritis diagnosis may be pre-existing.  Notably, in his June 1987 Report of Medical Board, it was noted that the Veteran has a strong family history of seronegative arthritis.  Additionally, in his December 1986 Report of Medical Board, the Veteran reported that his father and two brothers have “severe arthritis” with “the same pains in the same places I do.”  Given that the evidence suggests a plausible correlation between his in-service generalized arthritis and his current diagnoses, an opinion regarding aggravation should also be obtained.

4. Entitlement to a rating greater than 20 percent for right shoulder degenerative arthritis.

5. Entitlement to a rating greater than 20 percent for left shoulder degenerative arthritis.

6. Entitlement to an earlier effective date for increased ratings for the right and left shoulder degenerative arthritis.

With respect to the Veteran’s increased rating claims for his bilateral shoulders, the evidence shows that the Veteran had surgery to his right and left shoulders in March 2016 and October 2016, respectively.  However, aside from his shoulder surgeries being mentioned in other treatment records as a part of his medical history, records concerning his surgeries are not of evidence.  As the Veteran may be entitled to a period of temporary total for convalescence pursuant to 38 C.F.R. § 4.30, these records must be obtained to properly adjudicate the Veteran’s claims.  

The Board notes that the Veteran’s claims for earlier effective dates are inextricably intertwined with the increased rating claims; therefore, adjudication of this issue is deferred.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records and associate the same with the Veteran’s claims folder.  

2. Undertake appropriate development to obtain any outstanding private treatment records not already associated with the record.  The AOJ should particularly requests and obtain records associated with the Veteran’s right and left shoulder surgeries.  The Veteran’s assistance should be requested as needed.  All obtained records should be associated with the evidentiary record.  If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

3. Schedule the Veteran for a VA examination with a qualified clinician to determine the nature and etiology of his bilateral foot, bilateral elbow, and back disabilities.  The claims file must be made available to and reviewed by the examiner.  Any indicated studies should be performed.

The examiner should provide an opinion as to the following:

a). Is there clear and unmistakable evidence that the Veteran’s back, bilateral foot, and bilateral elbow disabilities existed prior to service? 

b). If any one of the conditions pre-existed service, is there clear and unmistakable evidence that the condition was NOT aggravated by his active service? 

c). If the condition did not pre-exist service, is it at least as likely as not (a 50% or greater probability) that the condition was incurred in service or otherwise related to his service?

d). If the condition did not pre-exist service, is it at least as likely as not (a 50% or greater probability) that the condition was proximately caused by any of the Veteran’s service-connected arthritic disabilities?

The examiner is also asked to reconcile the Veteran’s back diagnoses of record to the extent possible.

4. Then, readjudicate the claims.  If the benefit sought on appeal is not granted to the Veteran’s satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond.





 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	K. Laffitte, Associate Counsel