Citation Nr: 21006865 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-06 317A DATE: February 5, 2021 ORDER A 30 percent rating is assigned for status total knee replacement of the left knee. A 30 percent rating is assigned for status post total knee replacement of the right knee. Eligibility for assistance in acquiring specially adapted housing is denied. Eligibility for a special home adaptation grant is denied. REMANDED Entitlement to a rating in excess of 30 percent for a left knee disability, status-post total knee replacement, is remanded. Entitlement to a rating in excess of 30 percent for a right knee disability, status-post total knee replacement, is remanded. Entitlement to special monthly compensation based on the need for regular aid and attendance or being housebound is remanded. FINDINGS OF FACT 1. The Veteran underwent total knee replacement in each knee in 2004, and his status-post total knee replacement of the left knee has been manifested by intermediate degrees of residual weakness, pain, or limitation of motion. 2. The Veteran does not have a permanent and total service-connected disability resulting in the loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for a left knee disability, status-post total knee replacement have been met. 38 U.S.C.§§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5055, 5256, 5261, 5262. 2. The criteria for a 30 percent rating for a right knee disability, status-post total knee replacement have been met. 38 U.S.C.§§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5055, 5256, 5261, 5262. 3. The criteria for eligibility for assistance in acquiring specially adapted housing have been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 4. The criteria for entitlement to a special home adaptation grant have not been met. 38 U.S.C. §§ 2101(b), 7105; 38 C.F.R. § 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board recognizes that during the appeal the RO granted service connection for the right knee disability in a May 2017 rating decision and granted a compensable rating of 10 percent in a March 2019 rating decision. However, as a 10 percent rating is not the maximum schedular evaluation and the Veteran appealed all issues stated in the March 2019 statement of the case, the Board finds this increased rating claim is properly before the Board. The Veteran and his son testified before the undersigned Veterans Law Judge in a November 2020 virtual conference hearing. A transcript of that hearing has been associated with the file. The Veteran had active duty in the United States Air Force from October 1949 to October 1969. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these [*4] elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Bilateral knees Here, the Veteran is currently rated under Diagnostic Codes 5003-5260 for his knees, each rated as 10 percent disabling. However, while evidence of record does not include contemporary evidence, all treatment records do agree that the Veteran underwent total knee replacements in 2004. Indeed, the February 2017 VA examination notes the Veteran’s history of bilateral knee replacement surgery in 2004, and observed the presence of healed midline anterior surgical scars resulting from those procedures. As such, the appropriate diagnostic code is DC 5055, which addresses limitation following a total knee replacement. Under Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. (The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30). Thereafter, the minimum rating of 30 percent is warranted for a knee replacement with intermittent degrees of residual weakness, pain, or limitation of motion, to be rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. A 60 percent rating is assignable for a knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Given this information, the Board may conclude that the minimum 30 percent rating is warranted for each knee under DC 5055. While the Board has also determined that a new examination is warranted to determine whether ratings in excess of 30 percent are warranted, there is nothing precluding assigning the minimum rating independent of the results of the required additional development. Acquisition and Adaptation of Housing Specially Adapted Housing Specially adapted housing under is available to a veteran who has a permanent and total service-connected disability. This permanent and total service-connected disability must a disorder as 100 percent disabling due to: • The loss or loss of use of both lower extremities, such as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair; • Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; • The loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair; • The loss or loss of use one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair; • The loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (6) • Full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). The phrase “preclude locomotion” is defined as the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion, although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). In this case, unfortunately, entitlement to specially adapted housing is not warranted, as the Veteran is not subject to compensation at a level that is permanent and total. Although it is true that the Board is granting increased ratings for his knees, and is remanding for a new examination, it is not reasonably anticipated that a permanent and total rating would be attained solely due to a bilateral knee disability. Therefore, the criteria for entitlement to specially adapted housing has not been met. Home Adaptation Grant If entitlement to specially adapted housing is not established, a veteran may qualify for a grant for necessary special home adaptations if he has a service-connected disability that results in: • Blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees (such a disability need not be permanent and total in nature); or • A permanent and total disability which (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the truck; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease (COPD)). 38 C.F.R. § 3.809a(b). As discussed in greater detail above, the Board finds that the weight of the evidence demonstrates that although the Veteran's service-connected bilateral knee disabilities impact his ability to ambulate, there are no other service connected disorders. Therefore, he is also ineligible for a special home adaptation grant. REASONS FOR REMAND The Board finds that a remand is required for additional development prior to the adjudication of the other issues on appeal. First, regarding the Veteran’s knee disabilities, although the Board has found that a 30 percent rating is warranted for each knee, the record shows that that Veteran is significantly impacted by his bilateral knee disabilities, potentially to a level such that a rating in excess of 30 percent may be warranted. However, a review of the record shows that new examinations are needed in order to assesses the current level of severity of the Veteran’s left and right knee disabilities. Notably, the testimony provided in the November 2020 hearing describes symptoms that are more severe than those reflected in the February 2017 report. Additionally, in the March 2019 correspondence the Veteran’s son contends that the examination was inadequate as ROM testing was not performed. Given the new examinations, the issue of entitlement to special monthly compensation claim is inextricably intertwined with the increased rating claims for the bilateral knee disabilities and must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a significant impact upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Finally, the Board notes that the record includes medical records requests that were rejected as illegible. As always, VA should ensure that all relevant records have been obtained and incorporated into the record. The matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). The Veteran is of advanced age and expedited handling is requested.) 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records documenting treatment for bilateral knee disabilities. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records. 2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected bilateral knee disabilities/ The Veteran’s electronic claims file should be made available to and reviewed by the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, to include consideration of limitation of extension and whether ankylosis of the knee, and or nonunion of the tibia and fibula is present. The examiner is asked to attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the bilateral knee disabilities alone and discuss the effect of the Veteran’s bilateral knee disabilities on any occupational functioning and activities of daily living. 3. The AOJ should undertake any additional development deemed necessary, to include the scheduling of any additional VA examinations. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes