Citation Nr: 20031995 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 14-20 729 DATE: May 6, 2020 ORDER Prior to May 1, 2014, a rating in excess of 30 percent for residuals from a total left knee replacement is denied. From July 1, 2015, a 60 percent rating for residuals from a total left knee replacement is granted. Prior to August 21, 2012, a rating in excess of 60 percent for residuals from a total right knee replacement is denied. From October 1, 2013, a 60 percent rating for residuals from a total right knee replacement is granted. A total disability rating based on individual unemployability as a result of service-connected disabilities is denied. FINDINGS OF FACT 1. Prior to May 1, 2014, the Veteran’s residuals from a total left knee replacement does not result in chronic residuals from a total knee replacement surgery such as severe painful motion or weakness; ankylosis; extension functionally limited to 30 degrees or more; or an impairment of the tibia and fibula. 2. From July 1, 2015, the Veteran’s residuals from a total left knee replacement has resulted in chronic residuals consisting of severe painful motion and weakness. 3. Prior to August 21, 2012, the Veteran’s residuals from a total right knee replacement was shown to result in chronic residuals consisting of severe painful motion or weakness, which is the maximum schedular rating that may be assigned. 4. From October 1, 2013, the Veteran’s residuals from a total right knee replacement has resulted in chronic residuals consisting of severe painful motion and weakness. 5. The Veteran’s service-connected disabilities are not shown to preclude the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to May 1, 2014, the criteria for a schedular rating in excess of 30 percent for the Veteran’s residuals from a total left knee replacement have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256-63. 2. From July 1, 2015, the criteria for a 60 percent rating for the Veteran’s residuals from a total left knee replacement have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256-63. 3. Prior to August 21, 2012, the criteria for a schedular rating in excess of 60 percent for the Veteran’s residuals from a total right knee replacement have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256-63. 4. From October 1, 2013, the criteria for a 60 percent rating for the Veteran’s residuals from a total right knee replacement have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256-63. 5. The criteria for a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1968 to April 1972. In connection with this appeal, the Veteran testified at a hearing before the undersigned in July 2017. A transcript of that hearing is of record. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed an increased rating claim for his bilateral residuals from total knee replacements. A September 2012 rating decision granted a temporary 100 percent for convalescence from right knee surgery effective August 21, 2012, and a 30 percent rating effective October 1, 2013. An October 2012 rating decision granted an increased rating of 60 percent effective January 31, 2012, through the beginning of the period of convalescence on August 21, 2012. A May 2014 rating decision granted a temporary 100 percent for convalescence from left knee surgery effective May 1, 2014, and a 30 percent rating effective July 2, 2015. The Veteran asserts that he is entitled to higher ratings outside the periods of convalescence for knee surgeries. Diagnostic Code 5055 evaluates knee replacement. A 30 percent rating is assigned for a prosthetic replacement of a knee joint that results in an intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is assigned for a prosthetic replacement of a knee joint that results in severe painful motion or weakness, and a 100 percent rating may be assigned for one year following implantation of prosthesis. Diagnostic Code 5256 evaluates ankylosis of the knee and diagnostic Code 5262 evaluates impairment of the tibia and fibula. The medical record does not document any of these conditions. Therefore, these Diagnostic Codes are not applicable and will not be discussed further. Diagnostic Code 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Residuals from a Total Left Knee Replacement Regarding the Veteran’s left knee, prior to May 1, 2014, the Veteran’s medical records do not document findings consistent with a higher rating. In October 2012, the Veteran was afforded a VA examination. He reported left knee swelling and pain with prolonged walking or standing. He denied having any flare-ups. On examination, he demonstrated normal left knee extension to 0 degrees. The examiner reported there was no evidence of pain on examination. Repetitive use testing resulted in no additional limitation of motion. The examiner indicated that the Veteran’s residuals from a total left knee replacement resulted in less movement than normal. The Veteran retained normal 5/5 left knee strength. The examiner indicated that the Veteran had normal joint stability tests with no joint effusion. The examiner indicated that the Veteran had no evidence or history of recurrent patellar subluxation/dislocation, shin splits, stress fracture, chronic exertional compartment syndrome, any other tibial and/or fibial impairment, or meniscal condition. The examiner reported that the Veteran underwent left knee replacement surgery in 2009 that resulted in mild pain and stiffness. The examiner indicated that the Veteran regularly used a cane. After July 1, 2015, the Veteran’s medical records show that he was prescribed a left knee brace in February 2018 due to instability. At the July 2017 Board hearing, the Veteran testified that his left knee was worse than it ever was. He testified that he wore a knee brace due to instability. In May 2018, the Veteran was afforded a VA examination. He reported having flare-ups that resulted in stabbing pain after walking more than 100 yards and that his left knee locked and gave out resulting in frequent falls. He reported functional loss of being unable to climb stairs and ladders or walk more than 100 yards. On examination, he demonstrated left knee extension to 20 degrees with pain. The examiner indicated that there was evidence of pain with weight bearing. The examiner indicated that there was objective evidence of localized tenderness or pain on palpation. The Veteran was unable to perform repetitive use testing due to pain. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive use over a period of time or during flare ups. The Veteran retained 4/5 left knee strength. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran did not have a history of recurrent subluxation or lateral instability. The examiner indicated that there was a history of intermittent effusion. The examiner indicated that the Veteran was not able to perform joint stability tests. The examiner indicated that while the Veteran had a leg length discrepancy, he had no evidence or history of recurrent patellar subluxation/dislocation, shin splits, stress fracture, chronic exertional compartment syndrome, any other tibial and/or fibial impairment, or meniscal condition. The examiner reported that the Veteran underwent left knee replacement surgery in 2009. The examiner indicated that the Veteran constantly used a cane and left knee brace. Prior to May 1, 2014, the evidence of record does not establish that his residuals from a total left knee replacement warranted more than a 30 percent disability rating under Diagnostic Code 5055. The medical evidence does not demonstrate severe painful motion or weakness. Reference is made to the October 2012 VA examination where the examiner noted there was no evidence of pain on examination, and the Veteran retained normal 5/5 left knee strength. Accordingly, his intermediate degrees of residuals are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. The October 2012 VA examiner indicated that the Veteran did not have left knee ankylosis or an impairment or the tibia and fibula. Regarding Diagnostic Code 5261, the Veteran demonstrated normal extension, which is equivalent to a noncompensable rating. As such, an increased rating cannot be granted under that Diagnostic Code. Accordingly, prior to May 1, 2014, the assignment of an increased or separate compensable rating under any of the relevant diagnostic codes is not warranted as the Veteran residuals from a total left knee replacement did not result in chronic residuals consisting of severe painful motion or weakness or extension limited to 30 degrees or more. From July 1, 2015, the evidence of record establishes that the Veteran’s residuals from a total left knee replacement results in chronic residuals consisting of severe painful motion and weakness. After left knee surgery on May 1, 2014, the Veteran continued to have pain and was prescribed a left knee brace. At the May 2018 VA examination, the Veteran reported stabbing pain after walking more than 100 yards and that his left knee locked and gave out resulting in frequent falls. On examination, he demonstrated painful left knee range of motion, there was evidence of pain with weight bearing, and there was objective evidence of localized tenderness or pain on palpation. The Veteran was unable to perform repetitive use testing or joint stability tests due to pain. The Veteran retained 4/5 left knee strength and constantly used a cane and left knee brace. As such, from July 1, 2015, the Veteran meets the criteria for a 60 percent rating. In addition, under the “amputation rule” the combined rating for orthopedic disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. An amputation at the middle or lower thigh or at or above the knee level warrants a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5162-5164. As the Veteran is now in receipt of 60 percent rating for his residuals from a total left knee replacement from July 1, 2015, additional compensation would be precluded under 38 C.F.R. § 4.68, including a separate rating for instability. Accordingly, prior to May 1, 2014, the criteria for a schedular rating in excess of 30 percent for residuals from a total left knee replacement have not been met, and the Veteran’s claim is denied. From July 1, 2015, the criteria for a schedular rating of 60 percent for residuals from a total left knee replacement have been met, and the Veteran’s claim is granted. Residuals from a Total Right Knee Replacement For the period prior to August 21, 2012, the Veteran was in receipt of 60 percent rating for residuals from a total right knee replacement. Such is maximum rating that may be assigned under Diagnostic Code 5055. A higher rating is not available under this code. From October 1, 2013, the Veteran’s medical records show that he was prescribed a right knee brace in February 2018 due to instability. At the July 2017 Board hearing, the Veteran testified that after his latest right knee surgery, there was no improvement in his right knee condition. He testified that he was prescribed a motorized vehicle and wore a right knee brace due to instability. In May 2018, the Veteran was afforded a VA examination. He reported functional loss of being unable to climb stairs and ladders or walk more than 100 yards. On examination, he demonstrated normal right knee extension to 0 degrees with pain. The examiner indicated that there was evidence of pain with weight bearing. The examiner indicated that there was objective evidence of localized tenderness or pain on palpation. The Veteran was unable to perform repetitive use testing due to pain. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive use over a period of time or during flare ups. The Veteran retained 4/5 right knee strength with muscle atrophy. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran did not have a history of recurrent subluxation or lateral instability. The examiner indicated that there was a history of intermittent effusion. The examiner indicated that the Veteran was not able to perform joint stability tests. The examiner indicated that while the Veteran had a leg length discrepancy, he had no evidence or history of recurrent patellar subluxation/dislocation, shin splits, stress fracture, chronic exertional compartment syndrome, any other tibial and/or fibial impairment, or meniscal condition. The examiner reported that the Veteran underwent right knee replacement revision surgery in 2012. The examiner indicated that the Veteran constantly used a cane and right knee brace. From October 1, 2013, the evidence of record establishes that the Veteran’s residuals from a total right knee replacement results in chronic residuals consisting of severe painful motion and weakness. After right knee surgery on August 2012, the Veteran continued to have pain and was prescribed a right knee brace. At the May 2018 VA examination, the Veteran reported being unable to climb stairs and ladders or walk more than 100 yards. On examination, he demonstrated painful right knee range of motion, there was evidence of pain with weight bearing, and there was objective evidence of localized tenderness or pain on palpation. The Veteran was unable to perform repetitive use testing or joint stability tests due to pain. The Veteran retained 4/5 right knee strength with muscle atrophy and constantly used a cane and right knee brace. As such, from October 1, 2013, the Veteran meets the criteria for a 60 percent rating. In addition, under the “amputation rule” the combined rating for orthopedic disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. An amputation at the middle or lower thigh or at or above the knee level warrants a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5162-5164. As the Veteran is now in receipt of 60 percent rating for his residuals from a total right knee replacement from January 1, 2012, additional compensation would be precluded under 38 C.F.R. § 4.68, including a separate rating for instability. Accordingly, prior to August 21, 2012, the criteria for a schedular rating in excess of 60 percent from for residuals from a total right knee replacement have not been met, and the claim is denied. From October 1, 2013, the criteria for a schedular rating of 60 percent for residuals from a total right knee replacement have been met, and the Veteran’s claim is granted. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). On August 16, 2011, the Veteran filed a TDIU claim. Prior to January 31, 2012, the Veteran did not meet the schedular requirement for a TDIU as he did not have a single disability rated at 40 percent or higher and did not have a combined disability rating of 70 percent. As of January 31, 2012, the Veteran now meets the schedular requirements for a TDIU as he had a combined rating of 80 percent with at least one disability rated at 40 percent disabling. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. A review of the competent evidence of record, which includes the Veteran’s VA treatment records and his lay statements, when taken in total, does not suggest unemployability as a result of his service-connected disabilities during any period on appeal. At the July 2017 Board hearing, he testified that he last worked four years previously, or approximately in 2013. He testified that he had applied for work, but that no one would hire him due to his physical condition. He testified that he was unable to be on his feet. He testified there were no jobs that would allow him to work on a scooter. An October 2012 VA examiner reported that the Veteran’s bilateral knee disabilities would not prevent him from working jobs that did not require prolonged standing, walking, kneeling, or heaving lifting. A May 2018 VA examiner reported that the Veteran’s bilateral knee disabilities with bilateral knee scars would prevent him from climbing stairs and ladders and limit his walking to 100 yards at a time. The examiner reported that otherwise the Veteran was not precluded from clerical work. The Veteran has not identified or submitted any competent evidence demonstrating that his service-connected disabilities precluded him from securing and maintaining substantially gainful employment and entitled him to a TDIU. As such, the claims file does not show that the Veteran is unable to obtain or maintain substantially gainful employment. The Board does not believe that the Veteran’s service-connected disabilities prevents him from obtaining or maintaining substantially gainful employment consistent with the VA examiners’ findings, such as work that involved a desk job, did not require prolonged standing, walking, kneeling or heavy lifting, did not require climbing stairs and ladders, and did not require him to walk more than 100 yards at a time. From the above, it is the Board’s determination that the Veteran is able to obtain or maintain substantially gainful employment. (Continued on the next page)   The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, a TDIU is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.