Citation Nr: 21070422 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-31 466A DATE: November 23, 2021 ORDER Entitlement to an initial disability rating of 60 percent, but no higher, for status post total right knee replacement is granted from March 1, 2013. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from March 1, 2013. REMANDED Entitlement to an extraschedular TDIU for the period from June 1, 2008 to January 2, 2012 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's status post total right knee replacement manifested chronic residuals consisting of severe painful motion and weakness of the right knee from March 1, 2013. 2. The preponderance of the evidence indicates that the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment from March 1, 2013; prior to March 1, 2013, the Veteran does not meet the schedular criteria for TDIU nor the criteria for referral to the Director for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 60 percent, but no higher, for status post total right knee replacement from March 1, 2013, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055. 2. The criteria for entitlement to a TDIU have been met from March 1, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to May 1971. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in October 2018 and March 2021 for further development by the RO. These Board decisions discuss the extensive procedural history of this claim. The Board decision dated March 2021 also denied entitlement to initial disability ratings in excess of 10 percent for degenerative joint disease, right knee, and postoperative residuals of a torn meniscus, right knee, from February 27, 2006, to January 3, 2012. The Veteran is in receipt of a 100 percent rating for status post total knee replacement, right knee, from January 3, 2012. The Board remanded the present claim of entitlement to a rating in excess of 30 percent for status post total right knee replacement from March 1, 2013. See March 2021 Board remand. As this was the only issue remanded, it is the only claim that remains in appellate status. The Board finds that entitlement to a TDIU rating has been raised by the record in association with the claim for increased ratings for the Veteran's right knee disability. Therefore, the Board has added a claim of entitlement to a TDIU rating, as reflected above. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board next finds that there was substantial compliance with the Board's remand directives of March 2021. See Stegall v. West, 11 Vet. App. 268 (1998). The March 2021 Board remand directed the agency of original jurisdiction (AOJ) to obtain outstanding VA treatment records, afford the Veteran an opportunity to submit additional evidence, and obtain a VA examination for the Veteran's status post total right knee replacement. The AOJ obtained updated VA treatment records and provided notice to the Veteran regarding the submission of private medical treatment records or other evidence. See subsequent development letter dated March 2021, and VA treatment records received by VA in March 2021 and July 2021. The AOJ also obtained a VA examination in July 2021, and the Board finds that this examination contains adequate information to assess the issue on appeal. The Veteran described his flare-ups. The examination was conducted during a flare-up and the examiner provided range of motion measurements for a flare-up. The examiner also tested passive range of motion and specifically stated it was the same as active range of motion. Therefore, the Board will proceed with adjudication of the claim. Following remand, the AOJ granted a disability rating of 60 percent from June 1, 2021. See July 2021 rating decision. Therefore, the Veteran is presently in receipt of a disability rating of 30 percent from March 1, 2013, for his status post total right knee replacement, and a rating of 60 percent from June 1, 2021. 38 C.F.R. § 4.71a, DC 5055. 1. Entitlement to an initial disability rating of 60 percent, but no higher, for status post total right knee replacement is granted from March 1, 2013. The Veteran contends that he is entitled to a higher disability rating prior to June 1, 2021. See October 2021 appellate brief. For the reasons set out below, the Board agrees that a 60 percent disability rating for status post total right knee replacement is warranted from March 1, 2013. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the adequacy of assigned disability ratings, consideration is also given to factors affecting functional loss. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use, including that experienced during flare ups. 38 C.F.R. § 4.40. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 4243 (2011) (holding that pain alone does not constitute functional loss and is just one fact to be considered when evaluating functional impairment). That said, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. The Veteran's status post total right knee replacement is rated under DC 5055. 38 C.F.R. § 4.71a. Under DC 5055, knee replacement (prosthesis), warrants a minimum rating of 30 percent. Knee replacement with intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy to DCs 5256, 5261, or 5262. Knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Knee replacement for the year following implantation of the prosthesis warrants a maximum 100 percent rating. 38 C.F.R. § 4.71a, DC 5055. The Board notes that this version of DC 5055 was amended effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The amended version of this DC may not be applied prior to the effective date of February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003). However, the Board finds it may still apply the prior version of this DC to the entire period on appeal, as the Board is not prohibited from applying a prior regulation in effect during the pendency of a claim to the period on or after the effective date of the new version of the regulation. Thus, the Board finds that it may still apply the prior version of 38 C.F.R. § 4.71a, DC 5055, to the period on or after February 7, 2021, which is the effective date of the amended criteria, if this would afford a more favorable outcome. As set out below, the highest available rating is being granted pursuant to the old regulations. Under the amended version of DC 5055, for knee resurfacing or replacement (prosthesis), a total replacement only warrants a minimum evaluation of 30 percent. Knee replacement with intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy to DCs 5256, 5261, or 5262. Knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Knee replacement or resurfacing for the four months following implantation of the prosthesis or resurfacing warrants a maximum 100 percent rating. 38 C.F.R. § 4.71a, DC 5055. On review of the record, the Board finds that the disability picture presented more accurately reflects a 60 percent disability rating, but no higher, from March 1, 2013. Turning to the medical evidence of record, the VA examinations of August 2013 and September 2017 noted functional impact to include the inability to go up or down stairs or ladders, or to bend, stoop or squat. A VA treatment record dated May 2013 regarding a post-surgery assessment noted that the Veteran reported an inability to perform certain activities of daily living (ADL), such as getting into a tight or elevated space and entering and exiting vehicles. The clinician noted that he had a permanent limp due to a flexion contracture. The clinician noted that the Veteran's range of motion was similar to values taken in February 2012 despite intensive therapy. The clinician also noted "an unfortunate amount of postoperative stiffness" and supported the Veteran's desire to maintain a 100 percent disability rating. The Veteran's pain level was noted to be 6/10. Next, a September 2013 VA treatment record noted that the Veteran had pain in his right knee with arthropathy and stiffness. His pain varied between 5-6/10 and 10/10. His right knee was noted to be somewhat enlarged and warm. An April 2014 VA treatment record noted that his right knee was stiff. Another April 2014 VA treatment record noted that the Veteran experienced right knee pain, which varied from 3-5/10 to 8-9/10. A September 2015 VA treatment record noted that he wore a right knee open-front brace that was removed at bedtime. An April 2016 VA treatment record noted right knee pain secondary to prosthesis. A June 2017 VA treatment record noted 2/2 knee pain and that the Veteran was very sedentary and used a cane. A March 2018 VA treatment record noted that the Veteran could not flex his hips or knees past a 90/90 position and that he was limited to this position passively as well; in the supine position, the Veteran lacked approximately 30 degrees of extension bilaterally. The Veteran underwent a VA examination in June 2021. He reported pain and swelling. He described flare-ups as lasting for four to five hours. He stated they were caused by prolonged walking, standing, driving, sitting, and using stairs. He described his functional loss as pain and difficulty walking. He denied having instability of the right knee. His flexion was 105 degrees, and his extension was normal at 0 degrees. He had painful flexion. His passive range of motion was painful during flexion and the examiner specifically found that passive range of motion was the same as active range of motion. After repetitive motion testing, his flexion decreased to 90 degrees and his extension remained normal. Although not examined immediately after repeated use over time, the examiner stated that his flexion would be 90 degrees and his extension would be normal after repeated use over time. The examiner stated that the Veteran walked with a limp due to pain on weight bearing. Instability was not found on examination and was not reported. The examiner found that he did not have a history of recurrent subluxation or instability, and he did not have ankylosis. Turning to the lay statements of record, the Veteran reported that his range of motion and/or functional limitation were worse than what was shown in the August 2013 VA examination. He stated that his right knee does not bend far enough to assist him from rising from a sitting position and that he must shift all his weight to the left knee to do so. He also stated that he was in a high amount of pain. See September 2015 VA Form 9. The Veteran's representative contended in the November 2017 appellate brief that the September 2017 VA examination was inadequate because the examiner had not reviewed records or taken x-rays. The Board notes that while the September 2017 VA examination notes that the claims file was reviewed, the examination report did not indicate that the Veteran used any assistive devices. However, a nearly contemporaneous VA treatment record dated June 2017 showed that the Veteran used a cane; a September 2015 VA treatment record noted that he wore a right knee brace throughout the day; and a VA treatment record dated May 2013 noted that he had a limp. The Board notes that the July 2021 VA examination also noted the presence of a right knee limp. Moreover, the September 2017 VA examination did not address prior VA treatment records noting significant amounts of right knee pain. Therefore, affording the Veteran the benefit of the doubt, the Board finds that the Veteran experienced chronic residuals consisting of severe painful motion and weakness in the right knee. Thus, the Veteran's right knee disability warrants the maximum 60 percent rating under DC 5055 from March 1, 2013. The Board acknowledges the VA treatment record dated May 2013 wherein the clinician endorsed a continuation of a total disability rating. The Board notes that DC 5055 provides for a total rating for the year following implantation of a prosthesis; the Veteran is already in receipt of such a rating and, absent a subsequent surgery for replacement or resurfacing, there are no grounds upon which to grant or extend a 100 percent rating. 38 C.F.R. § 4.71a, DC 5055. Moreover, the Veteran has not contended, nor does the evidence of record show, that an extension of a temporary total disability rating is warranted pursuant to 38 C.F.R. § 4.30. See also October 2012 rating decision. Furthermore, as the Veteran was in receipt of the maximum schedular rating following his total right knee replacement, there is no legal basis for assignment of a higher scheduling rating from January 3, 2012, to March 1, 2013. The Board has also considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the evidence does not show the Veteran has symptoms better represented by another diagnostic code. Regarding instability, the September 2017 and June 2021 examiners noted that the Veteran did not have a history of subluxation or instability. In addition to not having a history of instability, the June 2021 examiner stated that the right knee was stable to all tests. Additionally, he did not use an assistive device for stability. Moreover, DC 5055 directly and specifically addresses knee replacements. Thus, a higher rating under another diagnostic code is not warranted. The Board also acknowledges the Veteran's competent and credible reports of relevant observable symptoms, as set out in the VA treatment records and examinations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. In sum, the Board finds that a disability rating of 60 percent, but no higher, for the Veteran's status post total right knee replacement from March 1, 2013, is warranted. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a TDIU is granted from March 1, 2013. The Veteran contends that he has been unable to work fulltime since June 2008 due to his service-connected right knee disability. See Applications for Increased Compensation based on Unemployability dated April 2010 and August 2010. To establish entitlement to TDIU, there must be impairment so severe that it is impossible for the Veteran to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). A veteran is eligible for a schedular rating of TDIU if either one service-connected disability is rated at least 60 percent or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more). 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple disabilities incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In this case, the Veteran is in receipt of a 60 percent rating for his status post total right knee replacement from March 1, 2013, as of the present decision. On review of the evidence, the Board finds that the evidence is at least evenly balanced for and against finding that the Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected right knee disability. Eligibility for TDIU is supported by evidence showing that the Veteran has not worked since prior to March 1, 2013, and that he has significant functional limitations due to his right knee disability as noted on the VA examination reports. The Veteran's military and post-military positions involved physically intense labor, which the evidence shows that he is unable to do because of his service-connected right knee disability. The Veteran's DD-214 shows that he was a medical corpsman or nurse's aide in service. Following service, he worked as bricklayer from the 1980s. See Applications for Increased Compensation based on Unemployability dated April 2010 and August 2010. He indicated that "bricklaying is all I have ever done." Id. He completed four years of high school education and has no additional training. Id. See also September 2017 VA examination (noting the Veteran's current retirement, a bricklaying career spanning 4 decades, and a high school education). Overall, the weight of the evidence supports a finding that Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected right knee disability, and a TDIU is warranted, from March 1, 2013. When a veteran does not meet the schedular requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a), discussed above, the case may be submitted to the Director for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) unless the issue is initially reviewed by the Director. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In its October 2018 remand, the Board found that the appeal period stems from an increased rating claim from February 2006. Prior to March 1, 2013, the Veteran does not meet the schedular requirements, as his combined disability rating was 20 percent from February 27, 2006; and 30 percent from October 31, 2011. Per his April 2010 VA Form 21-8940, the Veteran was gainfully employed as a bricklayer until "June 2008." Interpreting "June 2008" in the most favorable way, the Board will consider it to mean that he was last gainfully employed on June 1, 2008. Prior to June 1, 2008, the Veteran was substantially gainfully employed and therefore referral for an extraschedular TDIU is not warranted for the part of the appeal period prior to June 1, 2008. Additionally, his combined rating was 100 percent from January 3, 2012 to March 1, 2013. The combined 100 percent rating included a single 100 percent schedular rating for his right knee replacement. At that time, the only other ratings he had were 10 percent for his left knee DJD and noncompensable ratings for right and left knee scars. For the period from January 3, 2012, to March 1, 2013, the right knee disability that was rated at a scheduler 100 percent may not be considered in TDIU analysis. There is no probative evidence of record that is sufficient to substantiate a reasonable possibility that he was unemployable solely due to his left knee DJD or noncompensable scars. The record does not indicate this, and the Veteran has not asserted that his left knee DJD and noncompensable scars precluded employment. Referral for consideration of an extraschedular TDIU is not warranted for the period from January 3, 2012 to March 1, 2013. REASONS FOR REMAND For the period from June 2, 2008 to January 2, 2012, there is sufficient evidence to substantiate a reasonable possibility that his service-connected disabilities alone made him unemployable. At his October 2009 VA examination, the examiner stated that the right knee disability resulted in the inability to engage in any overexertion or physically demanding occupation. As noted above, the Veteran worked mainly as a bricklayer. Referral for extraschedular consideration of a TDIU for the period from June 1, 2008 to January 2, 2012 is warranted. This matter is REMANDED for the following action: 1. Refer the claim to the Director of the Compensation Service for consideration of the issue of entitlement to TDIU on an extraschedular basis for the period from June 2, 2008 to January 2, 2012. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.