Citation Nr: 21071227 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-04 392 DATE: November 30, 2021 ORDER A rating in excess of 60 percent for a right knee disability, status-post total right knee arthroplasty (right knee disability), is denied. FINDINGS OF FACT The severity of the Veteran's right knee disability is adequately addressed by the established schedular criteria. CONCLUSIONS OF LAW The criteria for a rating in excess of 60 percent for the right knee disability have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.68, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1961 to April 1964. In October 2018, a hearing was held before a former Veterans Law Judge (VLJ). The Veteran was notified that the former VLJ retired and the Veteran testified at a second hearing before hearing before the undersigned Veterans Law Judge (VLJ) in December 2020. This matter was previously before the Board, most recently in February 2021. Increased Rating The Veteran underwent a total right knee arthroplasty in October 2007; he has been rated at 60 percent Under Diagnostic Code 5055 since September 1, 2009. The Veteran seeks a higher rating. 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. The Veteran has not undergone a knee resurfacing or replacement during the period of the appeal. Accordingly, the Board finds a schedular rating in excess of 60 percent for the Veteran's right knee disability is precluded by law. The amputation rule set forth at 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for amputation at the elective level, were amputation to be performed. For example, the combined evaluations shall not exceed the 60 percent evaluation set forth under Diagnostic Codes 5162, 5163, and 5164 for an amputation of the thigh at the mid or lower thirds; for amputation of the leg with defective stump, thigh amputation recommended; and for amputation not improvable by prosthesis controlled by natural knee action. 38 C.F.R. § 4.68. Thus, as the provisions of 38 C.F.R. § 4.68 limit the combined rating for the Veteran's residuals of a total knee replacement to 60 percent, the currently assigned 60 percent rating is the maximum rating that can be assigned for the right knee. The Board has considered whether the Veteran's right knee disability symptomatology warrants extraschedular consideration. See 38 C.F.R. § 3.321 (b)(1). Initially, the Board notes that the Board previously referred the matter for extraschedular consideration in a July 2019 decision. The Board notes that this referral was based on the Veteran's allegations that an exceptional disability picture was present and not the Board's findings that such a disability picture was present. The Board did not make any such findings. In December 2020, the Executive Director, Compensation Service, determined that an extraschedular rating was not warranted. Accordingly, the Board has jurisdiction over the issue of entitlement to an extraschedular rating in excess of 60 percent. The Court has set out a three-part test (based on the language of 38 C.F.R. § 3.321(b)(1)) for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. See Thun v. Peake, 22 Vet. App. 111 (2008). In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements." For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased, or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The relevant residuals of the Veteran's right knee disability are contemplated by the 60 percent criteria of Diagnostic Code 5055 which considers chronic residuals of severe painful motion or weakness. Pain, stiffness, and limitation of motion are also specifically addressed by diagnostic codes 5256, 5261, and 5262; as referenced by Diagnostic Code 5055 for intermediate ratings following a knee replacement. The Veteran's disability rating for right knee replacement is sufficient to be equivalent to the amputation of the Veteran's leg at the middle or lower third. 38 C.F.R. § 4.71a, Diagnostic Code 5162. There is no evidence presented, and the argument has not been specifically raised, that the Veteran's disability picture is so exceptional that it exceeds the loss of the leg at the lower or middle third of the femur. Id. Furthermore, the record does not suggest the existence of symptoms not contemplated by the currently assigned diagnostic code. Notably, service connection is already in effect for a psychiatric disability and scar as secondary the right knee disability. As such, the Board finds that the Veteran's symptomatology is not so exceptional that the Veteran's current schedular evaluation is inadequate, and, as such, an extraschedular evaluation is not warranted. See Anderson, 22 Vet. App. at 426; Thun, 22 Vet. App. at 115. Special Monthly Compensation (SMC) VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim"). After consideration of the record and VA regulation, the Board finds SMC based on loss of use of the right lower extremity is not warranted. Under the provisions of 38 C.F.R. § 4.71 Diagnostic Code 5055, Note 2, SMC is assignable during the 100 percent rating period the earliest date permanent use of crutches is established. There is no regulatory basis for assigning SMC under Diagnostic Code 5055 in any other instance and the record does not indicate that the Veteran has permanent use of crutches. Under the provisions of 38 C.F.R. § 4.63(a), the loss of use of the foot is held to exist when no effective function (including balance, propulsion, etc.) remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a prosthesis. 38 C.F.R. §§ 3.350(a)(2), 4.63. Examples constituting loss of use of a foot include extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity or shortening of the lower extremity of 3 1/2 inches or more. Id. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) citing Dorland's Illustrated Medical Dictionary, 91 (27th Ed. 1988). Here, although the record reveals evidence of severe symptoms, clinical testing has revealed at least 75 degrees of motion, the Veteran reported 45 degrees of flexion at the 2020 hearing, and the record reveals consistent evidence of ability to walk and move the knee; the record does not support a finding of impairment analogous to unfavorable ankylosis so as to suggest loss of use. Regarding SMC based on need for regular aid and attendance or housebound status, the record indicates that a claim for SMC based on the need for regular aid and attendance or housebound status was denied in a February 2020 decision. That decision is final. The Veteran has not alleged a worsening of his condition since the February 2020 decision, and the record is absent any new history or findings which could raise a new claim for aid and attendance. Notably, the histories provided at the August 2020 VA examination and December 2020 hearing are cumulative of those considered by the Board in its February 2020 decision, including history of significant limitation of the distance the Veteran is able to walk, need for assistive devices and brace, and limited ability to drive, and the most recent VA form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, predates the Board decision. The "new" evidence fails to suggest factual need for aid and attendance due to the right knee disability or otherwise indicate a change that would reraise the issue sua sponte. Thus, the Board finds an ancillary claim for SMC for aid and attendance is not part of the increased rating claim on appeal. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.