Citation Nr: 20037518 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 19-10 030 DATE: June 2, 2020 ORDER Entitlement to a rating in excess of 10 percent for hypertension is denied. Entitlement to a rating in excess of 60 percent for a total left knee replacement, prior to December 17, 2019, is denied. FINDINGS OF FACT 1. The Veteran's hypertension is not characterized by diastolic pressure predominantly 110 or more or by systolic pressure predominantly 200 or more. 2. Prior to December 17, 2019, the Veteran's total left knee replacement is characterized by severe painful motion of the left knee. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.104, Diagnostic Code 7101. 2. The criteria for a disability rating in excess of 60 percent for a total left knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1981 to July 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Board notes that the Veteran’s appeal included an appeal for an increased rating of his service-connected right knee disability. However, the Veteran filed a separate timely appeal in February 2020 under the modernized review system. Therefore, the Board rules that this issue is no longer before the Board in the current claim. The Board also notes that during the pendency of the appeal, in a January 2020 rating decision, the RO granted a 100 percent disability rating for the Veteran’s service-connected left knee disability rating as of December 17, 2019. Therefore, the Board will consider the evidence of record prior to December 17, 2019. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations shall be applied, 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. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). 1. Entitlement to a rating in excess of 10 percent for hypertension In May 2003, the RO granted entitlement to service connection for hypertension at an initial rating of 10 percent under Diagnostic Code 7101 from August 1, 2002, the day after the Veteran separate from active duty. The Veteran filed a claim for an increased rating in February 2018. Diagnostic Code 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). 38 C.F.R. § 4.104. A rating of 10 percent is appropriate for hypertensive vascular disease with diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Id. A rating of 20 percent is appropriate for hypertensive vascular disease with diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. Id. A rating of 40 percent is appropriate for hypertensive vascular disease with diastolic pressure predominantly 120 or more. Id. A rating of 60 percent is appropriate for hypertensive vascular disease with diastolic pressure predominantly 130 or more. Id. Note (1) to Diagnostic Code 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Note (2) provides that hypertension that is due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be rated as part of the condition causing it rather than by a separate rating. Note (3) to Diagnostic code 7101 provides that hypertension is to be rated separately from hypertensive heart disease and other types of heart disorders. Id. A March 2018 VA medical record contains blood pressure readings of 157/93, 135/81, 139/80, with an average of 144/85, while noting that the Veteran takes continuous medication for his hypertension. In April 2018, the Veteran submitted a Disability Benefits Questionnaire by a private physician. The private evaluation notes blood pressure readings from June 2014 of 138/95, May 2017 of 143/88, and from April 2018 of 146/91. Additionally, the Board notes review of treatment records show blood pressure readings of 136/83 from July 2019 and 128/87 from August 2019. The most probative evidence does not reflect diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. For this reason, the Veteran's claim of entitlement to an initial rating in excess of 10 percent for hypertension must be denied. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. 2. Entitlement to a rating in excess of 60 percent for a total left knee replacement The Veteran had left knee replacement surgery in April 2004, which was classified as left knee status post total knee arthroplasty. The Veteran was initially assigned a 100 percent rating for this service-connected disability. Subsequently, the RO assigned the service-connected left knee replacement a 60 percent disability rating from June 1, 2005. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran filed a claim for an increased rating in February 2018. The Veteran claims his service-connected left knee replacement rating should be rated higher than 60 percent. As previously noted, the RO already granted a 100 percent disability rating from December 2019. Diagnostic Code 5055 provides for prosthetic replacement of the knee joint at 30 percent for intermediate degrees of residual weakness, pain, or limitation of motion rated by analogy to Diagnostic Codes 5256, 5261, or 5262; 60 percent for chronic residuals consisting of severe painful motion or weakness in the affected extremity; and 100 percent, the maximum available, for one year following implementation of prosthesis. 38 C.F.R. § 4.71a. Under Diagnostic Code 5256, ankylosis of the knee, a 30 percent rating is warranted for ankylosis at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. A 40 percent rating is warranted for ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is warranted for ankylosis in flexion between 20 and 45 degrees. Lastly, a 60 percent rating is warranted for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a. Diagnostic Code 5261 (limitation of extension of the leg) provides a 30 percent rating when extension is limited to 20 degrees; 40 percent rating when extension is limited to 30 degrees; and a 50 percent rating, the maximum available, when extension is limited to 45 degrees. 38 C.F.R. § 4.71a. For VA compensation purposes, normal range of motion for the knee is 0 degrees to 140 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5262 (impairment of tibia and fibula) provides a 30 percent rating when malunion with marked knee or ankle disability; and a 40 percent rating, the maximum available, when nonunion with loose motion requiring brace. 38 C.F.R. § 4.71a. Review of the evidentiary record for the period post left knee replacement documents the following musculoskeletal symptomatology of the left knee. The Veteran was provided a VA examination, in February 2018. At the February 2018 examination, the Veteran reported that his knee is getting worse, the Veteran reports aching and dull pain, crepitus, constant effusion, and knee locking and buckling. The Veteran reported experiencing flare-ups, in which he explained that “when it's very cold or damp, my knee feels like a rubber band,” and the Veteran reported experiencing functional loss noting that he limps when he walks down the hall at work. The examiner reported that the Veteran's left knee flexion was zero to 120 degrees, and extension was 120 to zero degrees. There was pain noted on the examination, but no change after repetitive-use testing or during flare-ups. No ankylosis or instability was reported. A subsequent VA examination in December 2019 noted that the Veteran had a scheduled surgery for a revision of his total joint replacement, as his prosthesis was becoming loose and resulted in increased pain and increased instability. Given the scheduled surgery, the Veteran’s left knee was not examined in this VA examination. The Board notes that the December 2019 VA examination was used to provide the Veteran with an eventual 100 percent rating beginning on December 17, 2019, the date of the scheduled surgery. In April 2018, the Veteran submitted a Disability Benefits Questionnaire by a private physician. The private evaluation noted that the Veteran has chronic knee pain, noting that the Veteran’s pain has gotten worse over the past two years. The physician reported that the Veteran’s left knee flexion and extension were normal, though with pain. No ankylosis or instability was reported. (Continued on the next page)   After a review of the evidence discussed above, the Board finds that there is no schedular basis for a rating in excess of 60 percent. The only higher disability rating of 100 percent is available for the one year following implementation of prosthesis. Further, with regard to both service-connected disabilities subject to this decision, the Board finds that the issue of an extraschedular rating has not been raised, and thus, referral to the AOJ for initial consideration of such is not warranted. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record. Moreover, the evidence reflects that the Veteran has maintained a substantially gainful occupation throughout the entirety of the appeal period. As such, consideration of entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) as part and parcel of his appealed issues seeking increased evaluations is not necessary. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Scott W. Dale Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, Associate 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.