Citation Nr: 21063795 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 08-36 543 DATE: October 18, 2021 ORDER Entitlement to an evaluation in excess of 60 percent for a post-operative right total knee arthroplasty on or after December 1, 2018, is denied. REMANDED Entitlement to an evaluation in excess of 30 percent for post-operative right total knee arthroplasty prior to October 27, 2017, is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The Veteran was assigned a temporary 100 percent evaluation for his service-connected right knee disability for the period from October 27, 2017, to December 1, 2018, based on surgery and convalescence thereafter. He is also in receipt of the maximum schedular evaluation available for his service-connected right knee disability since December 1, 2018. CONCLUSION OF LAW An evaluation in excess of 60 percent for post-operative right total knee arthroplasty on or after December 1, 2018, is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.68, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to May 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2007. A transcript is of record. The Board remanded the case for further development in September 2009, June 2014, July 2017, and December 2018. The case has since been returned to the Board for appellate review. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 ; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 60 percent for his service-connected right knee disability on or after December 1, 2018. The Veteran is currently assigned a 60 percent evaluation effective from December 1, 2018, for his service-connected right disability, pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5055. A 60 percent evaluation is the maximum schedular evaluation available under that diagnostic code. Although Diagnostic Code 5055 does allow for a 100 percent evaluation, such an assignment is a temporary evaluation that is only available for one year immediately following a prosthetic replacement of the knee joint, or effective from February 7, 2021, for four months following resurfacing or replacement (prosthesis) of the right knee. The Veteran was assigned a 100 percent evaluation for a total right knee replacement from October 27, 2017, to December 1, 2018, and there is no indication that he has subsequently underwent resurfacing or replacement (prosthesis) of the right knee. There is also no other diagnostic code pertaining to the knee or leg that provides for an evaluation in excess of 60 percent. See 38 C.F.R. § 4.71a , Diagnostic Codes 5256-5263. Moreover, the amputation rule provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. See 38 C.F.R. § 4.68. The combined evaluations shall not exceed the 60 percent evaluation set forth under Diagnostic Code 5162, 5163, and 5164 for an amputation of the thigh at the middle or lower thirds; for amputation of the leg with defective stump, thigh amputation recommended; and, amputation not improvable by prosthesis controlled by natural knee action. 38 C.F.R. § 4.68. Thus, the Veteran has been assigned the maximum evaluation that can be assigned under the rating schedule for his service-connected right knee disability. In other words, as a matter of law, the Veteran cannot be granted an evaluation in excess of 60 percent for the disability at issue. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran and his representative have not raised any other issues with regard to matter decided herein, nor have any other issues been reasonably raised by the record. See 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). REASONS FOR REMAND In the December 2018 remand, the Board directed that the Veteran be afforded a VA examination to ascertain the severity and manifestations of his service-connected right knee disability and provide an opinion on the impact to employment. The Board specifically requested that the examiner provide the range of motion of the left and right knees in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing and comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the prior VA examinations. Following the remand, the Veteran was provided VA examinations in October 2019 and July 2020. However, the VA examiners did not provide estimations for the August 2007, July 2010, or May 2016 VA examinations. Therefore, the Board finds that an additional medical opinion is needed to ensure compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). The Board also finds that the issue entitlement to TDIU is inextricably intertwined with the claim being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran complete a VA Form 21-8940. 2. The AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a medical opinion as to the severity and manifestations of his service-connected right knee disability prior to October 27, 2017. An additional examination of the Veteran should be performed only if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should comment as to whether ranges of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the VA examinations conducted in August 2007, July 2010, and May 2016. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. The examiner should also address how the Veteran's service-connected right knee disability results in functional impairment and comment on the Veteran's ability to function in an occupational environment. In so doing, he or she should address the Veteran's assertion that his right knee pain requires daily medication of narcotics, which would impact his ability work. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.