Citation Nr: 21008543 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-25 601 DATE: February 17, 2021 ORDER Entitlement to a 60 percent disability rating for service-connected right knee total replacement is granted, effective October 1, 2017, subject to the law and regulations governing the payment of monetary benefits is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, since October 1, 2017, his service-connected right knee total replacement has been manifested by chronic residuals consisting of severe painful motion and weakness. CONCLUSION OF LAW The criteria for a 60 percent disability rating for service-connected right knee total replacement are met, effective October 1, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5055 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from February 1968 to March 1972. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). By way of background, a February 2017 rating decision awarded a 100 percent disability rating to the Veteran’s service-connected right knee total replacement under Diagnostic Code 5055, effective August 10, 2016. The rating decision then assigned a 30 percent disability rating under 5055, effective October 1, 2017. This appeal was previously before the Board in October 2019, at which time the Board denied a rating in excess of 30 percent for instability of the right knee prior to August 10, 2016; and it awarded a separate 10 percent rating under Diagnostic Code 5259 for symptomatic residuals of the removal of the semilunar cartilage of the right knee for the period prior to August 10, 2016. The Board then remanded the Veteran’s claim for a rating in excess of 30 percent for his service-connected right knee total replacement from October 1, 2017, to the agency of original jurisdiction for further development. The Board notes that, during the pendency of the appeal, VA revised the rating criteria for Diagnostic Code 5055, effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal, if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the former rating criteria for 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, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Effective February 7, 2021, Diagnostic Code 5055 was revised; however, for the purposes of the Veteran’s appeal, the pertinent rating criteria remained the same. To warrant a 60 percent disability rating following a prosthetic replacement of the knee joint, there must be chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (effective February 7, 2021). Pertinent evidence includes the Veteran’s VA treatment records, his February 2019 testimony before the undersigned Veterans Law Judge, and the August 2020 VA examination report. A June 2017 VA fall screen noted that the Veteran ambulated with an unsteady gait, and that factors increasing the risk of falling included pain and weakness to the knees. A March 2018 VA fall risk assessment noted that the Veteran used ambulatory aids, and that he experienced weakness in his gait/transferring. An April 2018 VA fall screen noted that the Veteran ambulated with an unsteady gait, and that factors increasing the risk of falling included poor balance, weakness, pain, and stumbling. An August 2018 VA treatment record noted that the Veteran experienced chronic right knee pain. Another August 2018 VA treatment record noted the Veteran’s report that he experienced occasional episodes of the right knee wanted to give way, but he stated that he had not fallen. The treatment provider gave the impression that the Veteran had developed some weakness of the quadricep musculature of both lower extremities secondary to his health problems and period of relative inactivity. Upon examination, there 1-2+ synovial swelling, as well as 1+ laxity of both the medial and lateral collateral ligaments. During his February 2019 hearing, the Veteran testified that, since his 2016 total knee replacement, he had experienced pain, swelling, weakness, and some popping in the knee. He also reported that he experienced decreased range of motion, flare-ups of pain depending on his level of activity, and balance issues. An April 2019 letter from the Veteran’s private treatment provider noted that the Veteran experienced popping in his left knee following the August 2016 tot knee replacement. Further, the treatment provider noted that he was unable to straighten his knee, that he could not get down on his knees, that he could not stand or walk for prolonged periods of time, and that he could not go up and down stairs. An April 2019 VA treatment record notes the Veteran’s report of chronic right knee pain that was present for more than a year, and was aggravated by movement, standing/walking, and weight bearing. An August 2019 VA treatment record notes the Veteran’s report of chronic knee pain that was increased by activities of daily living. An August 2020 VA examination report noted the Veteran’s report of constant right knee pain, as well as popping, buckling, and swelling. The Veteran stated that pain occurred with walking and standing more than thirty minutes, and that he avoided kneeling and squatting. The examiner noted that pain was demonstrated on flexion and extension, and that there was objective evidence of pain with weight bearing. The examiner also noted that pain would significantly limit the Veteran’s functional ability with repeated use. The examiner added that the Veteran still required the constant use of a cane for support due to the residuals associated with his August 2016 total knee replacement. Based on the evidence of record, and after resolving all reasonable doubt in his favor, the Board finds that a 60 percent rating is warranted under Diagnostic Code 5055 for chronic residuals consisting severe painful motion or weakness, effective October 1, 2017. Indeed, in addition to the Veteran constant reports of pain, weakness, instability, and popping following his August 2016 total knee replacement, the Veteran’s VA treatment records consistently indicate that he experienced chronic pain and weakness in the right knee following surgery, and that he was a fall risk due to his unsteady gait. Furthermore, the August 2020 VA examiner confirmed that the Veteran experiences painful motion on flexion and extension, and that he required the constant use of a cane for the residuals associated with the August 2016 surgery. The Board finds that the Veteran’s disability since October 1, 2017, has been consistent with chronic residuals consisting severe painful motion or weakness; thus, a 60 percent disability rating is warranted under Diagnostic Code 5055. (Continued on Next Page) At his February 2019 hearing before the Board, the Veteran and his representative specifically requested the assignment of a 60 percent rating for the Veteran’s knee, based on post-surgery residuals, which is the maximum rating for the knee under Diagnostic Code 5055. Based on the Veteran’s arguments and contentions, and the after consideration of the evidence discussed above, the Board finds that the benefit sought on appeal is granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.