Citation Nr: 21066976 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-42 637 DATE: November 3, 2021 ORDER Entitlement to a disability rating of 60 percent for degenerative joint disease of the right knee beginning October 1, 2017 is granted. Entitlement to a disability rating in excess of 60 percent for degenerative joint disease of the right knee beginning July 8, 2021 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) beginning October 1, 2017 is granted. FINDINGS OF FACT 1. Beginning October 1, 2017, the Veteran's right knee disability is characterized by chronic residuals consisting of severe painful motion and weakness. 2. Beginning October 1, 2017, the Veteran's right knee disability has been assigned a 60 percent rating, the maximum rating available and authorized under all applicable diagnostic codes (DCs) and the provisions of 38 C.F.R. § 4.68 relating to the amputation rule; his knee disability did not more nearly approximate the loss of use of his right leg and he has not undergone a prosthetic replacement of the knee joint during the appeal period. 3. It is reasonably shown that the Veteran's service-connected disabilities precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 60 percent for degenerative joint disease of the right knee beginning October 1, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.59, 4.71a, Diagnostic Code (DC) 5055. 2. The criteria for entitlement to a disability rating in excess of 60 percent for degenerative joint disease of the right knee beginning July 8, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.59, 4.71a, Diagnostic Code (DC) 5055. 3. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) beginning October 1, 2017 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1977 to March 1981 and from May 1984 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in February 2021. These matters were remanded by the Board in March 2021 for additional development. 1. Entitlement to a disability rating of 60 percent for degenerative joint disease of the right knee beginning October 1, 2017. 2. Entitlement to a disability rating in excess of 60 percent for degenerative joint disease of the right knee beginning July 8, 2021. On March 9, 2015, the Veteran submitted a VA 21-526b, Veteran Supplemental Claim, asserting that his right knee disability has worsened. In March 2021, the Board granted a disability rating of 60 percent for degenerative joint disease of the right knee for the period from March 9, 2015 to August 15, 2016 and remanded a rating in excess of 30 percent beginning October 1, 2017. The Board notes that the Veteran's disability is rated at 100 percent disabling for the periods from October 2, 2012 to December 1, 2013 and from August 15, 2016 to October 1, 2017 following two separate knee replacement surgeries. The Veteran's total right knee replacement and its residuals are rated under Diagnostic Code 5055. Diagnostic Code 5055 provides a 100 percent rating for one year following implantation of prosthesis; a 60 percent rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a 30 percent minimum rating for intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Effective February 7, 2021, the new regulation changed Diagnostic Code 5055 and added "Resurfacing" to the section title as it is a newer treatment approach similar to replacement and is now rated the same as replacement for the 100 percent rating period, but not afterwards. Notes were added to preclude an additional rating under 4.71a when there is a rating under this section and to clarify that replacement means a "total replacement." The 100 percent rating was changed from 12 months to 4 months following implantation of prosthesis or resurfacing. During the February 2021 hearing, the Veteran testified that he experienced severe pain prior to his second surgery in 2016. The Veteran stated that he experienced symptoms of pain, swelling, weakness, and limited range of motion in his right knee. He has stated that it is hard for him to sit, stand, walk, or use stairs, and he loses his balance. In November 2016, the Veteran's doctor since May 2014 submitted a note stating that the Veteran first presented with right knee replacement, which required oral pain medication including narcotic medications to help with his discomfort to maintain his activities of daily living. The Veteran has had to wear a brace on his knee daily, which did not give him adequate relief and physical examination of his right knee exhibited swelling, flexion instability, and lateral laxity. With the Veteran's symptomatic instability, the doctor recommended total knee revision surgery as bracing, activity modification, oral medications, and therapy were not successful at alleviating his symptoms. Further, a March 2016 medical treatment record noted that the Veteran is suffering from post-prosthesis with chronic residuals, which has caused severe painful motion and he wears his support brace daily to help with the instability and weakness in his right knee. At the October 2018 VA examination, the Veteran reported pain and tenderness in the mornings and experiencing flare ups if he stands longer than 35-40 minutes, walks further than 200-300 yards, or attempts yard work. He stated that he is unable to go up more than 12-24 steps, unable to do yard work, bowl, squat, or run. The examiner noted abnormal range of motion and pain on flexion and extension. At the July 2021 VA examination, the Veteran reported weekly flare ups lasting one to two days with symptoms of severe throbbing pain, increased stiffness, and swelling. The examiner noted abnormal range of motion and estimated range of motion during a flare up or repetitive use over time at 20 degrees extension and 80 degrees flexion. Given the Veteran's competent and credible testimony and the corresponding medical evidence, the Board finds the Veteran's degenerative joint disease of the right knee warrants a rating of 60 percent under Diagnostic Code 5055 beginning October 1, 2017. However, a rating in excess of 60 percent is not warranted. The amputation rule provides, in pertinent part, that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were an amputation to be performed. 38 C.F.R. § 4.68. As relevant here, amputation of the leg at the knee warrants a 60 percent rating under DC 5162. 38 C.F.R. § 4.71a. While a rating of 100 percent is available for the year following knee replacement under DC 5055, the Veteran has not had a knee replacement during the relevant period on appeal and has previously been awarded the 100 percent rating following his previous knee replacement surgery. Therefore, any rating for the Veteran's right knee disability should not exceed 60 percent because this would run afoul of the amputation rule under 38 C.F.R. § 4.68. The Board finds that the Veteran has at least been assigned the maximum 60 percent rating, which contemplates chronic residuals consisting of severe painful motion or weakness, available for his service-connected right knee disability under the applicable rating criteria, beginning October 1, 2017. The assignment of a disability rating in excess of 60 percent for this period is not feasible. 3. Entitlement to a TDIU beginning October 1, 2017. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran asserts that his service-connected disabilities preclude him from obtaining or following substantially gainful employment. See Hearing Testimony, February 2021. Throughout the appeal, medical evidence notes that the Veteran's knee disability impacts his ability to preform any type of occupational task. See VA Examinations, June 2015, October 2018, and July 2021; see also Medical Treatment Record, November 2016. On his most recent TDIU application, the Veteran reported that he last worked full-time in December 2013 but became too disabled to work on January 6, 2016. He also reported that he worked part-time at Lowes in the paint department from April 21, 2014 to May 27, 2018. He noted that he missed five months of work due to illness and his highest gross earnings per month during this employment was 815 dollars. The Veteran reported that he had to fully stop working when his knee started to swell again. While a TDIU may be granted if employment is marginal, part-time positions are not de facto marginal employment. Whether part-time employment is marginal is determined by whether a veteran's earned annual income does not exceed the poverty threshold for one person, or on a facts-found basis. According to the U.S. Census Bureau's average poverty threshold for one person, the poverty threshold in 2017 was 12,060 dollars and 12,140 dollars in 2018. See United States Census Bureau Poverty Thresholds 2017, 2018. Thus, the Veteran's employment has been marginal. As the Veteran's employment was marginal, the Veteran met the schedular ratings outlined in 38 C.F.R. § 4.16(a), and the evidence of record demonstrates inability to obtain substantially gainful employment, TDIU is granted beginning October 1, 2017. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.