Citation Nr: 21067531
Decision Date: 11/04/21	Archive Date: 11/04/21

DOCKET NO. 17-56 214
DATE: November 4, 2021

ORDER

Entitlement to an extension of a temporary total evaluation from February 1, 2013 to December 1, 2013, for partial replacement of the right knee is granted.

INTRODUCTION

The Veteran served on active duty from January 1970 to May 1970. 

In October 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing.  

FINDING OF FACT

On October 25, 2012, the Veteran underwent a partial right knee revision surgery, with replacement of the patella and tibial components.

CONCLUSION OF LAW

From February 1, 2013 to December 1, 2013, the criteria for a temporary total disability rating for a right knee replacement have been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a , Diagnostic Code (DC) 5055.

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for an extension of a temporary total disability rating following his right knee revision surgery.  Therefore, no further development is required under 38 U.S.C. §§ 5103, 5103A or 38 C.F.R. § 3.159 before the Board decides the claim. 

Factual Background and Analysis

In November 2012, the Veteran filed a new claim for an increased evaluation following surgery for a partial replacement of his right knee.  In a December 2013 rating decision, the RO granted a temporary evaluation of 100 percent effective October 25, 2012, and an evaluation of 30 percent from December 1, 2012, as rated under DC 5055.  The Veteran disagreed with this rating, asserting he was entitled to an extension of his 100 percent evaluation under DC 5055.  Following additional development, the RO granted an extension of his temporary total evaluation until February 1, 2013.  The Veteran continued to assert an additional extension of his temporary total evaluation was warranted.  In October 2017, the RO issued a Statement of the Case (SOC) indicating an extension of benefits was not warranted because the Veteran's surgery was for a partial and not total replacement of the knee joint.

In sum, the Veteran contends he is entitled to a temporary total evaluation for 13 months following his right knee surgery of October 25, 2012.  The Board notes that at the time of his knee revision surgery, Diagnostic Code 5055, which covers prosthetic replacement of the knee joint, did not distinguish between partial and total knee replacements.  In short, the Board agrees with the Veteran.  

Total knee replacements are rated under 38 C.F.R. § 4.71a , and DC 5055.  This code provides for a total rating for the first year following implantation of a knee replacement (prosthesis); a 60 percent rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a minimum rating of 30 percent for intermediate degrees of residual weakness, pain or limitation under the appropriate diagnostic code for less severe residuals.

Prior to July 16, 2015, Diagnostic Code 5055 did not unambiguously exclude partial knee replacements.  See Hudgens v. McDonald, 823 F.3d 630, 637 (Fed. Cir. 2016).  Effective July 16, 2015, 38 C.F.R. § 4.71a was revised to clarify in a note that the provisions of 38 C.F.R. § 4.71a , DC 5055 apply only to total knee replacement.  80 Fed. Reg. 42040 (July 16, 2015).  Thus, for claims submitted to VA after July 16, 2015, DC 5055 applies only to total knee replacements.

Here, the Veteran filed his claim in November 2012 immediately following his partial knee replacement and well before the relevant regulation was revised to exclude the same.  The Veteran is, therefore, entitled to a total evaluation for the one-year period from the date of his partial knee replacement surgery.

Accordingly, the claim of entitlement to an extension of the temporary total evaluation from February 1, 2013 to December 1, 2013, for partial replacement of the right knee is granted. 

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Fraser, 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.