Citation Nr: 20042311 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 13-03 377 DATE: June 22, 2020 ORDER A disability rating greater than 10 percent for limitation of flexion of the right knee, for the period from April 18, 2009 to August 16, 2012, is denied. A separate disability rating of 10 percent for instability of the right knee is granted for the period from April 18, 2009 to August 16, 2012. A temporary total rating for a right knee disability is granted from October 1, 2012 to March 13, 2013. An increased disability rating of 60 percent for chronic residuals of a right total knee replacement is granted from June 1, 2014 onward. A disability rating greater than 10 percent for limitation of flexion of the left knee, for the period from April 18, 2009 to October 6, 2013, is denied. A separate disability rating of 10 percent for instability of the left knee is granted for the period from April 18, 2009 to October 6, 2013. An increased disability rating of 60 percent for chronic residuals of a left total knee replacement is granted from December 1, 2014 onward. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 7, 2010 is remanded for additional development. FINDINGS OF FACT 1. From April 18, 2009 to August 15, 2012, the Veteran’s right knee disability was manifested by painful motion during testing of flexion and slight instability. 2. On August 16, 2012, the Veteran underwent a right knee arthroplasty and chondroplasty. From October 1, 2012 to March 13, 2013, the Veteran experienced right knee symptoms equivalent to immobilization by cast. 3. On March 14, 2013, the Veteran underwent a right total knee replacement. Beginning June 1, 2014, he experienced chronic residuals of this procedure, manifested by severe weakness. 4. From April 18, 2009 to October 6, 2013, the Veteran’s left knee disability was manifested by painful motion during testing of flexion and slight instability. 5. On October 7, 2013, the Veteran underwent a left total knee replacement. Beginning December 1, 2014, he experienced chronic residuals of this procedure, manifested by severe weakness. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for limitation of flexion of the right knee, from April 18, 2009 to August 16, 2012, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5260. 2. The criteria for a separate disability rating of 10 percent for instability of the right knee are met from April 18, 2009 to August 16, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5257. 3. The criteria for an extension of a temporary total rating from October 1, 2012 to March 13, 2013 based on the need for convalescence following a right knee arthroplasty and chondroplasty are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. 4. The criteria for an increased disability rating of 60 percent for chronic residuals following a right total knee replacement are met, effective June 1, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5055. 5. The criteria for a disability rating greater than 10 percent for limitation of flexion of the left knee, from April 18, 2009 to October 6, 2013, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5260. 6. The criteria for a separate disability rating of 10 percent for instability of the left knee are met from April 18, 2009 to October 6, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5257. 7. The criteria for an increased disability rating of 60 percent for chronic residuals following a left total knee replacement are met, effective December 1, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to May 1984 and from March 1985 to December 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and October 2012 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). Jurisdiction of the Veteran’s claims file currently resides with the Huntington, West Virginia RO. The December 2009 rating decision denied claims for entitlement to service connection for a low back disability and entitlement to increased ratings for right and left knee disabilities. Comparatively, the October 2012 rating decision denied a claim of entitlement to service connection for adjustment disorder and granted a temporary total rating for convalescence from right knee surgery from August 16, 2012 to September 30, 2012. Subsequently, a November 2013 rating decision granted a 100 percent rating for the right knee from March 14, 2013 to May 31, 2014, with a 30 percent rating beginning June 1, 2014. Similarly, a January 2015 rating decision granted a 100 percent rating for the left knee from October 7, 2013 to November 30, 2014, with a 30 percent rating beginning December 1, 2014. In October 2016, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of the hearing is of record. Thereafter, in May 2017, the Board granted service connection for adjustment disorder. Additionally, the Board indicated that the issue of entitlement to a TDIU had been raised as part-and-parcel of the Veteran’s bilateral knee increased rating claim. Lastly, the Board remanded the issues of entitlement to service connection for a low back disability, entitlement to increased right and left knee disability ratings, entitlement to an extension of a temporary total rating beyond September 30, 2012 following a right knee surgery, and entitlement to a TDIU for further development. Finally, in April 2020, a VA RO issued a rating decision granting the Veteran service connection for a low back disability. The Board finds that this grant of service connection constituted a full award of the benefit sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). Additionally, the April 2020 rating decision increased the Veteran’s right and left knee disability ratings from 30 to 60 percent, effective February 28, 2018. Similarly, the RO awarded the Veteran entitlement to a TDIU, effective September 7, 2010. But, as these increases did not represent total grants of the benefits sought on appeal, the Veteran’s right and left knee increased rating claims remain in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Further, as the Veteran’s TDIU claim is part-and-parcel of his knee increased rating claims, and these claims were received in April 2009, entitlement to a TDIU prior to September 7, 2010 remains in appellate status. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Increased Ratings for the Right and Left Knees 1. Right Knee prior to August 16, 2012; Left Knee prior to October 7, 2013 The Veteran is currently in receipt of 10 percent ratings for his right and left knee conditions prior to August 16, 2012 and October 7, 2013, respectively, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5020-5055 and 5020-5060, for painful motion during testing of the flexion movement. After reviewing the evidence of record, the Board declines to assign ratings greater than 10 percent for limitation of flexion. However, the Board assigns separate 10 percent ratings for knee instability from April 18, 2009 to August 15, 2012 for the right knee and from April 18, 2009 to October 6, 2013 for the left knee. Accordingly, to this extent, the Veteran’s claim is granted. Regarding limitation of flexion, the Board bases its determination upon the results of VA knee examinations in October 2009 and September 2011. During these examinations, flexion of the right knee was limited to 110 degrees and flexion of the left knee was limited to 136 and 130 degrees, respectively. In addition to these examination reports, a review of medical treatment records associated with the claims file indicates that, at no point prior to August 16, 2012 and October 7, 2013, was flexion of the right or left knee limited to 30 degrees, even with consideration of pain on repetitive use and with flare ups. See August 2012 Dr. Brothers Treatment Record (noting right knee range of motion to 150 degrees); June 2012 Dr. Brothers Treatment Record (recording right knee range of motion of 0-115 degrees); April 2011 Bay Medical Center Emergency Department Note (indicating full range of motion of all extremities). As limitation to 30 degrees is required for the assignment of the next higher rating of 20 percent under Diagnostic Code 5260, the Board must deny the Veteran’s claim to this extent. Moving beyond limitation of flexion, the Board finds that the Veteran did not display any limitation of extension or painful motion during testing of the extension movement of either knee at any point during the period prior to August 16, 2012 and October 7, 2013. Specifically, during the October 2009 and September 2011 VA knee examinations, the Veteran did not display such limitations during range of motion testing for this time period recorded in VA and non-VA treatment records associated with the claims file. See August 2012 Dr. Brothers Treatment Record (noting right knee range of motion to 150 degrees); June 2012 Dr. Brothers Treatment Record (recording right knee range of motion of 0-115 degrees); April 2011 Bay Medical Center Emergency Department Note (indicating full range of motion of all extremities). Accordingly, the Board concludes that the assignment of separate disability ratings regarding for limitation of extension pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5261 are not warranted. However, in addition to ratings for flexion and extension, the Board notes that the Veteran did report instability of the right knee prior to August 2012 and of the left knee prior to October 2013. See, e.g., June 2012 Dr. Brothers Treatment Record; October 2009 VA Knee Examination Report. Although there were no objective findings of knee joint instability during physical joint stability testing, the Court of Appeals for Veterans Claims (Court) held in English v. Wilkie that Diagnostic Code 5257 does not require or categorically favor objective medical evidence for the purposes of evaluating knee instability. 30 Vet. App. 347, 352-53 (2018). As such, the Board assigns separate 10 percent ratings for right and left knee joint instability based upon the Veteran’s lay reports which it finds credible in the instant case. 2. Extension of Right Knee Temporary Total Rating between October 1, 2012 to March 13, 2013 Under 38 C.F.R. § 4.30, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. In order to attain the temporary total disability rating, a veteran must demonstrate that his service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). An extension of one, two, or three months of a temporary total disability rating may be granted based on the factors enumerated above. 38 C.F.R. § 4.30(b)(1). Extensions of one to six months beyond the initial six-month temporary total disability rating may be made upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(2). In the instant case, the Veteran underwent a right knee arthroplasty and chondroplasty on August 16, 2012. He was assigned a temporary total rating pursuant to 38 C.F.R. § 4.30(a) from August 16, 2012 to September 30, 2012. Thereafter, the Veteran underwent a right total knee replacement on March 14, 2013. The Veteran requests an extension of his temporary total rating following the August 16, 2012 procedure through to his March 14, 2013 knee replacement. After reviewing the evidence of record, the Board agrees and grants the Veteran his requested extension. The Board bases its determination primarily upon an April 2018 VA medical opinion. Specifically, a VA physician assistant reviewed the Veteran’s entire claims file and opined that, for the period from October 1, 2012 to March 13, 2013, the Veteran’s right knee displayed symptoms equivalent to immobilization by cast without surgery. Under 38 C.F.R. § 4.30(b), an extension of 1, 2, or 3 months beyond the initially assigned temporary total rating may be made if the disability at issue resulted in “[i]mmobilization by cast, without surgery[.]” 38 C.F.R. § 4.30(a)(3). Accordingly, the Board grants the Veteran’s extension based upon the findings of the April 2018 VA physician assistant. 38 C.F.R. § 4.30(b). 3. Right Knee beginning June 1, 2014; Left Knee beginning December 1, 2014 The Board notes that the Veteran underwent a right total knee replacement on March 14, 2013 and a left total knee replacement on October 7, 2013. Disability ratings regarding knee replacements and residuals are addressed by 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under this diagnostic code, a 100 percent rating is assigned for 1 year following implantation of the prosthesis. Following that 1-year period, a 60 percent rating may be assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262, with a minimum rating of 30 percent. See Diagnostic Code 5055. In the instant case, the Board finds that the Veteran has experienced severe weakness in both of his knees following the performance of right and left total knee replacements. Accordingly, pursuant to Diagnostic Code 5055, the Board assigns 60 percent ratings (1) beginning June 1, 2014 for the right knee, and (2) beginning December 1, 2014 for the left knee. In support of this determination, the Board primarily relies upon (1) a February 2018 VA knee examination report, and (2) the Veteran’s October 2016 Board hearing testimony. Specifically, the February 2018 VA knee examination report indicated that the Veteran reported experiencing significant weakness in both of his knees. The examiner then indicated that the Veteran felt instability when walking following his knee replacement surgeries. During the October 2016 Board hearing, the Veteran testified that he had been experiencing knee instability at an increased frequency following his knee replacements. See Hearing Tr. at 18. Additionally, the Veteran stated that his knees felt even weaker after the replacements. Id. at 9-10. The Board finds the Veteran’s testimony as to the onset and continuity of his knee weakness and instability to be credible in the instant case. Accordingly, the Board grants the Veteran’s claim and assigns 60 percent ratings (1) beginning June 1, 2014 for the right knee, and (2) beginning December 1, 2014 for the left knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5055 REASONS FOR REMAND Entitlement to a TDIU prior to September 7, 2010 As mentioned previously, the Veteran was awarded a TDIU, effective September 7, 2010, by a VA RO in an April 2020 rating decision. However, as TDIU was raised by the Board in May 2017 as part-and-parcel of the Veteran’s knee increased rating claim, which was received on April 18, 2009, the April 2020 rating decision did not constitute a full grant of the decision sought on appeal. See Harper, supra. 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall 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). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. For the time period consisting of April 18, 2009 to September 6, 2010, the Veteran does not meet the threshold schedular requirements for a TDIU. Specifically, while the Veteran’s right and left knee disability ratings combine for “one disability” ratable at 40 percent, he does not have sufficient additional disability to bring his combined disability rating to 70 percent or more. See 38 C.F.R. §§ 4.25, 4.26. Beginning April 18, 2009, the Veteran is only service-connected for the additional disabilities of a lumbar spine disability (20 percent), right lower extremity radiculopathy (10 percent), and left lower extremity radiculopathy (10 percent). Combining these disability ratings with his knee “one disability” rating results in a combined rating of 62 percent, rounded to 60 percent. See id. Nevertheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities are to be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards. Id. Accordingly, the Veteran’s claim is referred to the Director, Compensation Service, for initial consideration of whether a TDIU is warranted for the period prior to September 7, 2010 on an extra-schedular basis. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU prior to September 7, 2010 to the Director, Compensation Service, for extra-schedular consideration. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.