Citation Nr: 21070364 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-05 286 DATE: November 23, 2021 ORDER From August 1, 2009, entitlement to a rating of 60 percent, and no higher, for status/post right Total Knee Arthroplasty (TKA), is granted. FINDING OF FACT From August 1, 2009, the Veteran's right knee, status post TKA, has been manifest by complaints of severe pain CONCLUSION OF LAW From August 1, 2009, the criteria for a rating of 60 percent, and no higher, for right knee, status post TKA, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1970 to August 1985. By way of history, the Veteran underwent a right TKA in June 2008, and the disability was rated at 100 percent pursuant to DC 5055. Effective August 1, 2009, he was assigned a 30 percent rating. In October 2020, the Board denied a rating in excess of 30 percent for a right TKA. The Veteran appealed the October 2020 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In June 2021, the CAVC granted a Joint Motion for Remand (JMR) submitted by the parties, which vacated the October 2020 Board decision that denied a rating in excess of 30 percent for a right TKA and remanded the matter to the Board for compliance with the JMR. The parties agreed it was unclear whether ameliorative effects of medications that the Veteran was taking was properly considered under Jones v. Shinseki, 26 Vet. App. 56, 61 (2018). 1. Residuals of a right TKA is granted. The Veteran contends that the residuals of his right TKA is more disabling than his current 30 percent rating. Under DC 5055, a 100 percent rating is assigned with a subsequent minimum rating of 30 percent assigned thereafter. Intermediate levels of residual weakness, pain, or limitation of motion, the disability is rated by analogy to DCs 5256, 5261, or 5262 which provides that a knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity (60 percent). The Board has considered the Veteran's lay statements. To the extent that the Veteran contends that his right knee disability, namely pain, is more severe than currently evaluated, he is competent to describe that he has right knee pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes that the criteria for knee disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 75,453 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 3541 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to the application of criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The Board has considered the changes to the total replacement and resurfacing criteria under Diagnostic Code 5055. However, as the Board is granting the maximum rating of 60 percent that can be awarded after implantation of prosthesis or resurfacing (i.e., after the total knee replacement) under the new DC 5055, thus, the change in criteria has no effect on this Veteran's claim. Upon review of the evidence, and consistent with the June 2021, the Board finds that the medical evidence indicates that residuals from a right TKA, such as severe or painful motion in the effected extremity, warrant a 60 percent rating under DC 5055 for the period after August 1, 2009. In so finding, the Board looks to the findings of the January 2020 VA examiner noting that the Veteran takes Vicodin twice daily to relieve his severe right knee pain. See January 2020 Disability Benefits Questionnaire (DBQ); see also May 2014 Inpatient Admission Note; October 2011 Outpatient Note (documenting reports that pain medication reduces his severe knee pain). The Board notes that the ameliorative effects of pain medication should not be considered when evaluating whether the Veteran has continued severe pain in an affect extremity. See Jones, 26 Vet. App. at 61. Thus, the Board finds that finding the benefit of the doubt for the Veteran, an increased rating of 60 percent is warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, Associate 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.