Citation Nr: 21062374 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 13-22 917 DATE: October 7, 2021 ORDER Entitlement to a temporary 100 percent disability rating for residuals right knee injury status post arthroscopy following total knee arthroplasty (right knee disability), from July 12, 2011, through July 31, 2012, is granted. Entitlement to a 30 percent disability rating, but no higher, beginning August 1, 2012, for a right knee disability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran underwent a total right knee arthroplasty on July 12, 2011. 2. Resolving reasonable doubt, the Board finds that the Veteran's total right knee arthroplasty is related to his service-connected residuals right knee injury status post arthroscopy. 3. Beginning August 1, 2012, the Veteran's right knee disability has presented with intermediate degrees of residual pain. CONCLUSIONS OF LAW 1. The criteria for a temporary 100 percent disability rating for right knee disability, from July 12, 2011, through July 31, 2012, have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.30, 4.71a, Diagnostic Code 5055 (2020). 2. The criteria for a 30 percent disability rating, but no higher, beginning August 1, 2012, for a right knee disability have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, 5257, 5262 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to January 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2016. A transcript of the hearing is of record. The Board remanded this matter in September 2017. The Board finds there has been substantial compliance with its September 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Entitlement to a temporary 100 percent disability rating for residuals right knee injury status post arthroscopy following total knee arthroplasty (right knee disability), from July 12, 2011, through July 31, 2012, and entitlement to a 30 percent disability rating, but no higher, beginning August 1, 2012, for a right knee disability The Veteran asserts that his residuals right knee injury status post arthroscopy warrants a compensable rating. The Veteran also asserts that he is entitled to a temporary total disability rating based on surgery on his right knee. However, before addressing the increased rating claims, the Board must first address the issue of whether the Veteran's right total knee arthroplasty is due to his current service-connected residuals right knee injury status post arthroscopy. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Initially, the Board finds that the Veteran's total right knee arthroplasty is secondary to his service-connected residuals right knee injury status post arthroscopy. The Board notes that the record shows the Veteran had several right knee surgeries prior to his arthroplasty in 2012. Additionally, in a December 2012 VA opinion, the examiner stated that he could not opine that the Veteran's right knee replacement or any significant knee damage leading to the knee replacement was incurred in or caused by service. In contrast, in a February 2013 private opinion, the Veteran's orthopedist opined that the Veteran's knee disability was related to his injury in service, and that at this point the Veteran had required a knee replacement. The Board acknowledges the VA examiner's argument that the Veteran participated in sports and played soccer following service; however, in contrast, the Veteran has consistently stated, and testified at the August 2016 Board hearing, that he only coached soccer after service. Thus, the Board finds the medical opinions to be probative and in equipoise and the Veteran's statements to be probative. Therefore, the Veteran's total right knee arthroplasty is related to his service-connected residuals right knee injury status post arthroscopy. The fact that the Veteran underwent surgical total right knee arthroplasty on July 12, 2011, is not in dispute. Based on the above finding, the Board finds that the Veteran is entitled to a temporary 100 percent disability rating through July 31, 2012. Therefore, the Veteran's disability is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2020), pertaining to knee replacements. Under that code, replacement of either knee joint warrants a 100 percent evaluation for a one-year period following implantation of the prosthesis, after a one month temporary rating pursuant to 38 C.F.R. § 4.30 expires. It is well recognized that total replacements, such as the Veteran's July 12, 2011, surgery, fall within the parameters contemplated by the temporary 100 percent rating afforded by Diagnostic Code 5055. As the Veteran was within one year of his knee replacement surgery when service connection was granted for his right knee disability, he is awarded a 100 percent rating up to the first of the month following expiration of the one-year period. Accordingly, the Board grants a temporary 100 percent rating through July 31, 2012. Pursuant to Diagnostic Code 5055, at the expiration of one year following a knee replacement procedure, a 60 percent evaluation is warranted if there are chronic residuals consisting of severely painful motion or severe weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the disability will be rated by analogy to Codes 5256, 5261 or 5262. The mandatory minimum rating is 30 percent. The Board notes that effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disabilities. 85 Fed. Reg. 76453 (Nov. 30, 2020). Specifically, under the revised version of Diagnostic Code 5055, effective February 7, 2021, a minimum 30 percent rating is warranted for total knee replacement only. A 60 percent rating is warranted for prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy to diagnostic codes 5256, 5261, or 5262. A 100 percent rating is warranted for 4 months following knee resurfacing or replacement. See 85 Fed. Reg. 76453, 76461 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5055). Diagnostic Codes 5256, 5260, and 5261 were not changed by the February 7, 2021, amendments. While Diagnostic Codes 5257 (subluxation or instability) and 5262 (impairment of tibia and fibula) were revised, these diagnostic codes are not for application based on the findings in this case, as described below. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The amendments above have established the effective date of February 7, 2021, without a provision for retroactive application. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Thus, the Board will continue to apply the old rating criteria for Diagnostic Code 5055 to rating periods prior to February 7, 2021, but can apply whichever set of criteria is more favorable to periods after February 7, 2021, if the claim was pending prior to this date. Id. In the present case, the Board finds the rating criteria prior to February 7, 2021 to be most favorable to the Veteran, and therefore, as seen above, awards a 100 percent rating for the 1 year following the total right knee arthroplasty. The Board also notes that the Veteran's claim for a compensable rating for residuals right knee injury status post arthroscopy is rated under Diagnostic Code 5261. However, the Board finds that based on the evidence that the Veteran's total right knee arthroplasty is related to his residuals right knee injury status post arthroscopy, that the Veteran's disability is more accurately described under Diagnostic Code 5055. Thus, the Board must assign a separate rating, removing the old rating code Diagnostic Code 5261 from July 11, 2012, the date the Veteran underwent total right knee arthroplasty. The Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. The Board must now determine whether the modification of the diagnostic code may be considered a severance. Recognizing instances where the Board has rated a Veteran's disability under a different diagnostic code than previously rated, the Court has similarly indicated that there may be times when a change in diagnostic code is not equivalent to a severance. See Gifford v. Brown, 6 Vet. App. 269, 271 (1994) (a simple, non-substantive administrative correction showing the injury causing disability was to a different part of the body than that reflected in the initial rating "did not result in a new rating or the severance of the old rating"). In Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011), the Federal Circuit noted that the purpose of section 1159 was to protect veterans with long-standing determinations of service connection from suddenly having that determination stripped. It found that to determine that the change of the situs of the disability (or the diagnostic code associated with it) was a severance of one service-connected disability and the establishment of another, where the cause of the disability and the resultant functional impairment were the same, would "ill-serve the purpose of the statute." The Federal Circuit also found its view was consistent with the interpretation of the statute by VA General Counsel (in VAOPGCPREC 50-91 and 13-92) and by the Court in Gifford v. Brown, 6 Vet. App. 269 (1994). See Read, supra. As such, the Board finds that the change in diagnostic codes from Diagnostic Code 5261 to Diagnostic Code 5055 from July 12, 2011, does not constitute a severance. Instead, the diagnostic code assigned is a more accurate descriptor of the Veteran's service-connected disability and symptoms. Additionally, the change has not resulted in any reduced benefit to the Veteran, as shown below. Looking to the evidence to determine the severity of the Veteran's right knee following the July 2011 right knee arthroplasty, in an October 2012 VA examination, the examiner noted a diagnosis of right knee degenerative arthritis, status post total knee replacement. The Veteran reported flare ups with activity. On examination, range of motion was flexion to 120 degrees with no objective evidence of painful motion and extension to 0 degrees with the examiner marking that there was no limitation of extension. There was no additional limitation in range of motion after 3 repetitions. The Veteran reported functional loss described as less movement than normal, pain on movement, and non-disabling sensory loss lateral to the incision. There was evidence of tenderness or pain on palpation. The examiner noted a total right knee joint replacement and determined that the Veteran experienced intermediate degrees of residual weakness, pain or limitation of motion. The Veteran did not use any assistive devices. At the August 2016 Board hearing, the Veteran testified that he was physical unable to work due to his knee disability. He said that he worked for his brother in a warehouse, but was unable to bend, squat, or lift. In an October 2017 VA examination, the Veteran reported flare ups described as pain and stiffness. The examiner marked that there was no functional loss; however, then described functional loss as difficulty standing and walking for long periods. On examination, range of motion was flexion to 95 degrees and extension to 0 degrees. Range of motion itself did not contribute to functional loss. Pain was noted on examination and caused functional loss at flexion and extension. There was evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation or crepitus. The Veteran was able to perform repetitive use testing with range of motion reduced to flexion to 85 degrees; extension stayed at 0 degrees. Factors that caused functional loss included pain, lack of endurance, and weakness. The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time. Range of motion was flexion 75 degrees and extension to 0 degrees. The Veteran was also not examined during a flare up and the examiner determined that the examination was medically consistent with the Veteran's statements describing functional loss during flare up. Pain, weakness, and lack of endurance significantly limited functional ability with flare ups. Range of motion was described as flexion to 65 degrees an extension to 0 degrees. Additional factors contributing to the disability included less movement than normal, weakened movement due to muscle injury or peripheral nerves injury, etc., and interference with standing. There was no evidence of muscle atrophy or ankylosis. The examiner noted that the Veteran had intermediate degrees of residual weakness, pain or limitation of motion due to his total right knee joint replacement. The Veteran said he used a brace constantly. The examiner noted that the Veteran had evidence of pain on passive range of motion testing as well as non-weight bearing testing. There was evidence of pain on motion at the point at which pain began when the Veteran started movement. There was evidence of weakness. In a December 2018 VA treatment record, the Veteran's right knee was reported to be stable with flexion to 120 degrees and extension to 0 degrees. There was no evidence of significant discomfort on passive patella-femoral motion. Additional post-service treatment records do not warrant a higher rating for the Veteran's right knee disability beyond the 30 percent granted from August 1, 2012. The Board finds that the evidence of record does not support that throughout the period on appeal from August 1, 2012, the Veteran has experienced chronic residuals of severe painful motion or weakness in the lower right extremity. As a whole, muscle strength testing over the course of multiple years has remained normal. Given the range of motion testing results, the Veteran's own reports of pain, as well as the Veteran's description of the functional impact of his disability, the Board finds that the evidence does not warrant a 60 percent rating for chronic residuals of severe painful motion or weakness due to the service-connected right knee disability. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Nevertheless, intermediate residuals of a knee replacement also require consideration under Diagnostic Codes 5256, 5261, and 5262. However, as there is no showing of ankylosis, limitation of extension to 30 degrees or worse (even with painful motion and other factors), or impairment of the tibia or fibula, the Veteran is not entitled to higher ratings under these codes. In sum, and resolving reasonable doubt in favor of the Veteran, the Board finds that a temporary 100 percent disability rating for right knee disability, from July 11, 2012, to July 31, 2012, is warranted, and a 30 percent rating, but no higher, for a right knee disability from August 1, 2012, is warranted. 38 U.S.C. § 5107 (b) (2018); 38 C.F.R. §§ 3.102, 4.3, 4.59 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Based on the above grants for the Veteran's increased rating claims, the Board finds that the issue of TDIU should be remanded to the RO for readjudication. Additionally, as there is no evidence of a VA Form 21-8940 of record, the RO should provide the Veteran with this form to complete before readjudicating the claim of TDIU. The matters are REMANDED for the following action: The RO should provide the Veteran with a VA Form 21-8940, and allow for an appropriate time for the Veteran to complete this form. Following implementation of the above granted temporary total rating and 30 percent rating for the right knee disability, readjudicate the TDIU claim on appeal. Thereafter, if the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Saudiee 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.