Citation Nr: 21065637 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-30 961 DATE: October 26, 2021 ORDER Entitlement to a disability rating of 60 percent, but no higher, for left knee arthroplasty from February 1, 2017, is granted. REMANDED Entitlement to service connection for an autoimmune disorder, to include rheumatoid arthritis or Sjogren's syndrome, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's left knee arthroplasty symptomatology more nearly approximates chronic residuals consisting of severe painful motion or weakness from February 1, 2017. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 60 percent for left knee arthroplasty from February 1, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to October 1971. In December 2019, the issues on appeal were remanded by the Board for additional development. Review of the completed development with regard to the Veteran's left knee disability reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a disability rating of 60 percent for left knee arthroplasty Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. DC 5055 provides for a 100 percent rating for one year following implantation of prosthesis and a minimum 30 percent rating following that one-year 100 percent rating period following implantation of prosthesis. Where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Id. Here, the Veteran was assigned a 100 percent rating from December 28, 2015 to February 1, 2017, and a 30 percent minimum rating assigned from February 1, 2017; as such, the Board must determine whether the Veteran's condition warrants the currently assigned minimum rating from February 1, 2017, or a rating in excess of 30 percent. For the period from February 1, 2017, the evidence is at least evenly balanced as to whether the Veteran's left knee status post arthroplasty symptomatology more nearly approximates the criteria for a 60 percent rating under DC 5055. The Board finds that the evidence of record reflects that the Veteran's left knee disability manifests with symptoms of painful motion, weakness, and functional impairment that more nearly reflect a 60 percent rating under DC 5055. During the Veteran's March 2020 VA examination, it was reported that the Veteran has had significant issues with activities of daily living and using stairs because of stiffness and pain in his knee leading to repeated falls. The Veteran also reported noting reduced muscle strength in his foot and that it drags a bit on walking. The examiner reported left knee extension muscle strength as 4 out of 5. The examiner stated that the Veteran's condition adversely impacted his ability to perform both physical and sedentary activities due to his pain and limited range of motion in knee. The Veteran was noted to be unable to kneel or squat and sit or stand for long periods of time. He also was reported to be have trouble in climbing up and down stairs. Additionally, a February 2019 orthopedic consult note indicated that the Veteran was having persistent pain and limited range of motion since his surgery. The Board finds the 2020 examiner's report to be detailed, probative, and consistent with the rest of the evidence of record regarding the severity of the Veteran's left knee condition on appeal. The Board also notes that the Veteran is competent to report his level of pain and his history of falls related to walking up and down stairs. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). The Board finds that the Veteran's symptoms of weakness of the knee during extension, persistent painful motion of the left knee, and limitations of daily activities more nearly reflect chronic residuals consisting of severe painful motion or weakness in the affected extremity required for a 60 percent rating under DC 5055; accordingly, the Board finds that a 60 percent rating is warranted for the Veteran's left knee disability under DC 5055 from February 1, 2017. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. A 60 percent rating is the maximum rating under DC 5055; as such, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. See Spencer v. West, 13 Vet. App. 376, 382 (2000). The Board notes that the January 2017 and March 2020 DBQs each show that the Veteran does not have ankylosis of the left knee during the period on appeal; thus, a separate rating under DC 5256 is not warranted. Moreover, although the Veteran previously underwent a meniscectomy, both examinations in 2017 and 2020 reported that the Veteran's left knee meniscus was not causing his current symptoms. Therefore, separate ratings under DCs 5258 and 5259 are not warranted. As for a separate compensable rating for left knee instability under DC 5257, any symptoms of instability are contemplated by the 60 percent rating that includes weakness; therefore, a separate rating for left knee instability is not warranted during the period on appeal. 38 C.F.R. § 4. 14. Based upon the foregoing, the Board finds that a 60 percent rating under DC 5055 is warranted from February 1, 2017. The preponderance of the evidence, however, weighs against a finding that disability rating in excess of 60 percent is warranted at any point during the appeal period. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to service connection for an autoimmune disorder, to include rheumatoid arthritis or Sjogren's syndrome, is remanded. In December 2019, the Board found that the January 2017 VA medical opinion was inadequate because the examiner did not address the report provided by the Veteran during his hearing that an orthopedic physician had informed him that the rheumatoid arthritis was caused by the deterioration of the joint. See 2019 Hearing Transcript, p.7. The Board requested a new medical opinion that specifically addressed whether the Veteran's autoimmune disorder was secondary to his service-connected left knee disability and to discuss the Veteran's report that a physician informed him that the rheumatoid arthritis was caused by "deterioration of the joint" of his left knee. The Veteran was afforded a VA examination in March 2020. The examiner only addressed whether the Veteran's autoimmune disorder was directly due to his period of active service. The examiner did not provide an opinion regarding secondary service connection. Accordingly, the Board finds that another medical opinion is required. See Stegall v. West, 11 Vet. App. 268 at 271. Entitlement to a TDIU is remanded. During the pendency of the increased rating claim on appeal, the evidence of record implicitly raised the issue of entitlement to a TDIU. Particularly, the Veteran asserted during his March 2020 VA examination that he is unable to perform his work as a licensed real estate agent due to limitations standing, walking, and using stairs. The Veteran reiterated this claim in his statement submitted in May 2020 reporting that he had to stop working as a realtor because he was unable to risk walking up and down stairs due to weakness in his left knee. When a request for a TDIU is made during the pendency of a claim for an increase, whether expressly raised by a veteran or reasonably raised by the record, it is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of the claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Thus, the Board finds that the issue of entitlement to a TDIU is inferred as part of the increased initial rating claims on appeal. It is unclear, however, if the Veteran has stopped working entirely, and if so, when the Veteran became unable to work. Therefore, upon remand, further evidentiary development as to exactly when the Veteran stopped working as a realtor should be accomplished, and to determine if the Veteran has obtained other employment since that time. The matters are REMANDED for the following action: 1. Send the Veteran VCAA notice for the claim for entitlement to a TDIU and conduct any related development (such as a VA Form 21-8940). 2. Undertake appropriate efforts schedule the Veteran for a VA examination to determine the etiology of his current autoimmune disorder, to include rheumatoid arthritis or Sjogren's syndrome. The claims file must be made available to the examiner. The examiner must report review of the claims file. The examiner is specifically asked to provide the following opinions The examiner is specifically asked to provide the following opinions: Whether it is at least as likely as not (a 50 percent probability) that any current autoimmune disorder was caused by the Veteran's service-connected left knee disability. The examiner is asked to discuss the Veteran's statement provided during his 2019 hearing that one of his orthopedic physicians had informed him that "the rheumatoid arthritis was caused by the deterioration of the joint, basically spread." A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the Veteran's lay assertions. The Veteran's lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.