Citation Nr: 21005704 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 10-30 241 DATE: February 2, 2021 ORDER Entitlement to a disability rating in excess of 60 percent for the Veteran's service-connected left knee disability for the period from September 1, 2013 to June 16, 2016, and for the period beginning August 1, 2017, is denied. Entitlement to an extraschedular disability rating for the Veteran's left knee disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from July 1, 2014 to June 16, 2016, is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran’s service-connected left knee arthritis for the period on appeal prior to September 29, 2011, is remanded. FINDINGS OF FACT 1. For the period of September 1, 2013 to June 16, 2016, and the period beginning August 1, 2017, the Veteran’s left knee status post arthroplasty is manifested by chronic residuals consisting of severe painful motion and weakness. 2. For the entire period on appeal, the severity of the Veteran’s left knee disability including symptoms of pain, stiffness, limitation of motion, and swelling are all adequately addressed by the established schedular criteria. 3. For the relevant period beginning August 28, 2007, evidence of record indicates that the Veteran’s service-connected disabilities prevent her from obtaining and maintaining substantially gainful employment consistent with her educational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 60 percent for the Veteran's service-connected left knee disability for the period from September 1, 2013 to June 16, 2016, and for the period beginning August 1, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code 5055 2. The criteria for establishing entitlement to an extraschedular disability rating for the Veteran's left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code 5055 3. The criteria for establishing entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 3.401, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1976 to August 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter has been before the Board in December 2015 and in December 2018. Subsequent to the Board’s December 3, 2018, decision, the United States Court of Appeals for Veterans Claims (Court) has issued decisions in Harper v. Wilkie, 30 Vet. App. 356 (2018) and Payne v. Wilkie, 31 Vet. App. 373 (2019). In an April 2019 rating decision, the RO implemented the Board’s grant of a TDIU and assigned an effective date of August 1, 2017. In light of the change in the legal landscape since the Court’s issuance of Harper in December 2018, the Board must now consider this issue. When this case was last before the Board in December 2018, it was also remanded for additional development. Specifically, the RO was instructed to obtain medical opinions regarding the Veteran’s current severity of the Veteran’s left knee conditions. The Veteran was provided with a relevant examination. As such, the Board finds that the AOJ substantially complied with the directives in the December 2018 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Left Knee Replacement Following the prosthetic replacement of a knee joint, a 100 percent rating will be assigned for one year. Thereafter, a 60 percent rating is warranted if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, rate by analogy to DC 5256, 5261, or 5262, with a minimum rating of 30 percent. 38 C.F.R. § 4.71a, DC 5055. The Veteran underwent a total left knee arthroplasty in September 2011 with two revisions of her left knee replacement in July 2012 and June 2016. Following her surgeries, the Veteran’s left knee disability was recharacterized as traumatic arthritis, left knee, status post total arthroplasty and was rated as 100 percent disabling from September 29, 2011 through August 31, 2013, and again from June 17, 2016 to July 31, 2017. The Veteran’s left knee was then rated as 60 percent disabling from September 1, 2013 to June 16, 2016, and again rated as 60 percent disabling from August 1, 2017, to present under DC 5055. The Veteran submitted VA and private treatment records regarding the treatment of her left knee condition. These records indicate that after the Veteran’s knee replacement and revisions she presented with pain, stiffness, swelling, limited range of motion, difficulty with prolonged walking, standing, sitting, bending, climbing stairs. Further, the Veteran was afforded April 2014, February 2016, and December 2019 VA Knee examinations regarding her left knee disability. The examiners noted the Veteran’s pain, stiffness, swelling, limited range of motion, difficulty with prolonged walking, standing, sitting, bending, climbing stairs. No ankylosis was reported. At worst, during the Veteran’s flare-ups, the Veteran’s knee has abnormal flexion from 0 to 50 degrees (normal 0 to 140) with normal extension. The examiner also noted that the Veteran’s joint replacement causes chronic residuals consisting of severe painful motion or weakness. The Board has considered whether the Veteran may be assigned a disability rating in excess of 60 percent for her left knee total knee replacement during the applicable periods. The Board finds, however, that for reasons outlined below, that a higher rating is unassignable by law throughout the period on appeal. The Board finds that schedular ratings in excess of 60 percent for the Veteran’s left knee degenerative joint disease status post total knee arthroplasty are precluded by law. Specifically, the Board notes that 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, 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 left knee. Therefore, a disability rating in excess of 60 percent is not warranted for left knee replacement. In weighing the evidence of record, particularly the Veteran’s private treatment notes, VA examinations, and competent lay statements the Board finds a rating in excess of 60 percent disabling for the Veteran’s left knee is not warranted for the periods of September 1, 2013 to June 16, 2016, and from August 1, 2017, to present (the dates the Veteran’s temporary total evaluations ended). As the Veteran has not had any additional knee revision surgeries during these applicable time periods, 60 percent is the maximum rating allowed under Diagnostic Code 5055. In sum, the Board further finds that a rating in excess of 60 percent for the applicable periods is not warranted. The Veteran is in receipt of the highest schedular rating (following the 100 percent period) under DC 5055 and under diagnostic codes 5256, 5261, and 5262 for which intermediate degrees of residuals are evaluated. Extraschedular Ratings The Board has considered whether the Veteran’s left knee replacement symptomatology warrants extraschedular consideration. See 38 C.F.R. § 3.321(b)(1). Initially, the Board notes that the RO in a July 2020 memorandum forwarded the issue of entitlement to an extraschedular rating for the Veteran’s left knee disability to the Director of compensation services. In a September 2020 Advisory Opinion, the Director of Compensation services denied the Veteran’s claim for entitlement to an extra-schedular rating. For the reasons below, the Board agrees. 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 left knee disability include pain, stiffness, swelling, limited range of motion, difficulty with prolonged walking, standing, sitting, bending, climbing stairs. Such symptoms and their functional impact are contemplated by the 60 percent criteria of DC 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 DC 5055 for intermediate ratings following a left knee replacement. The Veteran’s disability rating for her left 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 her leg at the lower or middle third of the femur. Id. Additionally, the relevant evidence does not establish that the Veteran’s left knee disability has required frequent hospitalizations nor has her left knee caused marked interference with employment. 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. TDIU The Board notes that the Veteran is already awarded TDIU for the period beginning August 1, 2017, as such the Board will address the earlier periods on appeal where the Veteran is not entitled to a 100 percent disability rating. As an initial matter, the Board observes that the Veteran met the schedular criteria for TDIU from August 2007. At the time, the Veteran had a combined schedular rating of 80 percent disabling with left knee arthritis at 10 percent disabling, hysterectomy at 50 percent disabling, right knee degenerative joint disease at 10 percent disabling, status post bunionectomy for her bilateral feet each at 10 percent disabling, right wrist carpal tunnel at 10 percent disabling, left knee instability at 10 percent disabling. For the period July 1, 2014 to June 17, 2016, the Veteran had a combined schedular rating of 90 percent with left knee status post arthroplasty at 60 percent disabling; hysterectomy at 50 percent disabling; right knee arthoplasty at 30 percent disabling; status post bunionectomy for her bilateral feet each at 10 percent disabling; right wrist carpal tunnel at 10 percent disabling; and a noncompensable evaluation for residual scars of the bilateral knees. Based on the evidence, the Board finds that the Veteran’s service-connected disabilities precluded her from obtaining or maintaining substantially gainful employment. The Veteran has not worked since her last employment in the Air Force in 1994. See January 2016 VA Form 21-8940 Application for Increased Compensation Based on Unemployability. This job, and virtually any other job, require the Veteran to be able to attend normal workday hours, as well as interact and communicate effectively with others. Additionally, the Veteran has two years of college education and denied any additional education or training after becoming disabled. The Veteran’s medical records reflect significant pain and impairment associated with disabilities of the knees. The Veteran has a long history of knee surgeries, knee replacements, and revisions; all of which have caused her service-connected knee disabilities to result in significant work impairment since service. The Veteran’s carpal tunnel syndrome of the right wrist also significantly impaired her functioning including at computer or typing tasks prior to her carpal tunnel release surgery. Historically the Veteran’s gynecological conditions with fibroids resulted in significant ongoing pain and debilitating complications which contributed to substantial impairment in her ability to rejoin the workforce following her service separation. Thus, her service-connected disabilities not only caused significant work impairment but also substantially impaired her capacity to gain work experience following service. The Veteran submitted lay statements regarding her disabilities. Most notably during her August 2015 hearing testimony, the Veteran reported that she has been unable to work due to a combination of her knee and wrist disabilities. In this case, the Board must determine the value of all evidence submitted, including medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board notes that the Veteran has been afforded multiple VA examination opinions over the years. The VA examinations come from competent examiners who support their conclusions with evidence and sound medical reasoning. As such their medical opinions meet the first and second step of the inquiry. However, the opinions address the issue of the Veteran’s employability solely with regards to individual disabilities. As such, no single medical opinion addresses the cumulative effect of all the Veteran’s service-connected disabilities when opining on her employability. The Board specifically notes a February 2016 VA examiner who opined that the Veteran’s right knee disability would allow her to pursue sedentary employment, without opining on the disability in conjunction with her other service-connected conditions. The Board has considered the Veteran’s lay statements in support of her claim. She is competent to report symptoms such as pain, swelling, difficulty walking, and difficulty standing because it requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran’s lay statements are consistent with other medical evidence in the record, notably the VA examination reports. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. Affording the Veteran the benefit of the doubt, the Board finds that her significant impairment due to service-connected disabilities combined with limited educational achievement and little or no work experience outside the military, rendered her incapable of obtaining or retaining substantially gainful employment, or that the evidence is at least in equipoise. The Board notes that the Veteran’s service-connected disabilities during the relevant time period include bilateral knee conditions, right wrist carpal tunnel, and significant gynecological conditions. As noted above, the Veteran’s service-connected disabilities met the schedular requirement for TDIU during the relevant periods, and the Veteran provided competent evidence addressing her symptoms and limitations. Additionally, as no examiner discussed the combined impact of the Veteran’s service-connected disabilities when opining on the Veteran’s employability, the evidence is at least in equipoise as to whether the Veteran was unemployable due to her service-connected disabilities. Thus, the Board resolves all reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Further, the Board notes that the Veteran is not entitled to a TDIU based on a single disability, or multiple disabilities counted as “one disability” (such as her bilateral knee disabilities) alone. The Veteran’s entitlement to TDIU comes from the combined effects of all her disabilities on her employability. See Youngblood v. Wilkie, 31 Vet. App. 412 (2019) (multiple service-connected disorders that are defined as “one disability” under 38 C.F.R. § 4.16(a) in order to establish entitlement to a total disability rating based on individual unemployability (TDIU) may not serve as “a service-connected disability rated as total” for the purpose of establishing eligibility for SMC under 38 U.S.C. § 1114(s)). As such, the Veteran does not fit the criteria laid out in Youngblood. Based on the foregoing, the Board finds that the Veteran’s service-connected disabilities have prevented her from obtaining and maintaining substantial employment, and therefore, a TDIU is warranted for the relevant periods on appeal. REASONS FOR REMAND Left Knee The record contains a June 2008 VA examination regarding the Veteran’s left knee disability; however, this examination does not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As the Veteran underwent a total left knee replacement in September 2011, the Board finds that a retrospective examination of the Veteran’s left knee is warranted to apply the Correia and Sharp criteria to the medical evidence in the record in order to determine if, prior to her knee replacement, the Veteran warranted a higher disability rating for her service connected left knee conditions. The Veteran’s new examination must consider her medical history and the Veteran’s functional loss due to her knee disability for the period on appeal prior to her knee replacement. The matters are REMANDED for the following action: Obtain a retrospective opinion from a qualified examiner with sufficient expertise to address the severity of the Veteran’s service-connected left knee disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should review this remand in its entirety, and the examiner should review the Veteran’s lay reports of her flare-ups and the clinical findings on examination and opine on the functional impact of the Veteran’s reported flare-ups If possible, the examiner is instructed to provide a retrospective opinion which identifies the range of motion of the Veteran’s knees in active motion, passive motion, weight-bearing, and non-weight-bearing prior to her left knee replacement. Additionally, as part of the retrospective opinion, based on the Veteran’s lay statements and the other evidence of record, the examiner should provide estimates of any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time for the periods prior to her knee replacement. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.