Citation Nr: 21010095 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-24 460 DATE: February 24, 2021 ORDER Entitlement to a rating higher than 30 percent for post right total knee arthroplasty from August 1, 2012 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities prior to February 7, 2019 is denied. FINDINGS OF FACT 1. For the period from August 1, 2012, the evidence is against a finding that the Veteran's right knee following total knee replacement has been manifested by chronic residuals consisting of severe painful motion and weakness, neither has the Veteran’s right knee been shown to have ankylosis, extension limited to 30 degrees, or impairment of the tibia and fibula. 2. For the period prior to February 7, 2019, the Veteran's service-connected disabilities have not been shown to have precluded him from securing or following a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 30 percent for post right total knee arthroplasty from August 1, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (Code) 5055. 2. The criteria for entitlement to TDIU, due to service-connected disabilities prior to February 7, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1974 to April 1979. These matters were previously before the Board of Veterans’ Appeals (Board) in March 2019 and remanded by a Department of Veterans Affairs (VA) Regional Office (RO) for issuance of a supplemental statement of the case. Entitlement to a rating higher than 30 percent for post right total knee arthroplasty from August 1, 2012 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 entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. By rating decision in November 2014, service connection was granted for right total knee arthroplasty with a 100 percent rating effective December 30, 2011; a 30 percent rating was assigned from August 12, 2012 under Code 5055 (prosthetic replacement of knee joint). Code 5055 provides for a 100 percent rating for one year following implantation of prosthesis. Afterwards, a 30 percent rating is assigned for chronic residuals consisting of intermediate degrees of residual weakness, pain or limitation of motion in the affected extremity. A 60 percent rating, the maximum rating, is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion will be rated by analogy to Codes 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula). 38 C.F.R. § 4.71a, Code 5055. Code 5256 evaluates ankylosis of the knee. The record contains no evidence of right knee ankylosis. As such, this diagnostic code is not applicable. Code 5261 provides ratings based on limitation of extension of the leg. A 0 percent rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. The maximum 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Code 5262 evaluates impairment of the tibia and fibula. The record contains no evidence of an impairment of the tibia and fibula. As such, this Code is not applicable. The Veteran was afforded a VA-contract examination in September 2018. He reported having bilateral knee pain. He stated walking more than 100 yards results in an increase in pain. He has to sit often and cannot stand for long periods. On physical examination range of motion testing of the right knee revealed he had normal (active and passive) range of motion with flexion to 140 degrees and extension to 0 degrees. He had mild tenderness to palpation of the right knee at the joint line related to the arthroplasty. Pain was noted on rest/non-movement. There was evidence of pain with weight bearing and evidence of crepitus. There was no objective evidence of right knee pain on non-weight bearing. There was no additional loss of function or range of motion after three repetitions. Pain significantly limited functional ability with repeated use over a period of time and with flare-ups; however, the Veteran denied having any loss of motion. Additional factors contributing to disability included instability of station, disturbance of locomotion, and interference with standing. He reported swelling and pain with standing for more than 10 minutes or walking for more than 100 yards. There was no reduction in muscle strength of the right knee and there was no muscle atrophy. There was also no ankylosis of the right knee. There is no history of recurrent subluxation, lateral instability or recurrent effusion. Right knee stability testing was performed, and there were no findings of anterior, posterior, medial or lateral instability. It was noted the Veteran had a meniscal tear. He had a total right knee joint replacement and meniscectomy in 2011; his residuals consisted of pain, swelling, and gait abnormalities. There was no degenerative or traumatic arthritis documented. There was no functional impact affecting the Veteran’s ability to work related to the right knee. The Veteran described having to sit every 10 minutes or after walking for 100 yards due to left knee pain. There was no finding of chronic residuals consisting of severe painful motion or weakness of the right knee. The Board finds the examination report probative, as it was based on a review of the claims file and thorough examination of the Veteran. In November 2018 the Veteran was seen at a VA outpatient clinic with complaints of knee pain. He reported that over the years, after his knee replacements, the pain had returned. He related that it is hard for him to walk any distance without pain. He stated he has tried using a cane/walker but prefers not to use them. He stated he has swelling in both knees. The assessment was chronic bilateral knee pain status post bilateral surgeries. The Board finds that a rating higher than 30 percent from August 1, 2012 for the Veteran's total right knee replacement is not warranted. While the September 2018 VA-contract examination and VA outpatient treatment records show the Veteran reported knee pain since his knee replacements, those records do not show that his right knee disability results in severe residuals consisting of severe painful motion or weakness, which is required to warrant the next higher 60 percent rating under Code 5055. The Veteran's representative argues that the Veteran’s right knee disability is more severe than what the examination reports have found, and a rating higher than 30 percent is warranted. That argument is not supported by the facts in this case; neither the VA-contract examiner nor the VA medical provider has assessed the Veteran’s right knee disability with chronic residuals consisting of severe painful motion or weakness. The Board relies on information from those medical reports as the examiner/provider physically examined the Veteran. Furthermore, higher ratings under Codes 5256, 5261 and 5262 are not available as ankylosis has not been found of the right knee, extension has not been shown to be limited to 30 degrees or more, and there is no evidence of impairment of the tibia and fibula. Regarding Code 5261, a higher rating is also not warranted for functional loss. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, the medical evidence does not contain evidence of such symptoms as incoordination, loss of strength, or any other findings that would support a higher rating on the basis of functional loss due to pain. As such, a rating higher than 30 percent under Code 5055 is not warranted. As the preponderance of the evidence is against the Veteran's claim for an increased rating, the claim is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Entitlement to TDIU due to service-connected disabilities prior to February 7, 2019 Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Assignment of a TDIU rating requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. Since December 1986, the Veteran has been intermittently assigned a 100 percent rating for specified periods under 38 C.F.R. § 4.30 (convalescent rating) for his service-connected left and right knee disabilities. At no time at the expiration of the 100 percent rating was he assigned a 40 percent rating for at least one disability, nor did he have a combined overall rating of at least 70 percent. Specifically, during the period under consideration, the Veteran’s service-connected disabilities were left total knee arthroplasty, rated 30 percent from November 1, 2011, right total knee arthroplasty, 30 percent from August 1, 2012, left knee surgical scars, rated 10 percent from December 28, 1998, and right knee surgical scar, rated 0 percent from August 1, 2012. His combined rating was 60 percent from August 1, 2012. (See October 2020 Rating Decision Codesheet). However, the Veteran’s right knee disability and his scars have been noted to be secondary to the left knee disability. As such, all of these disabilities arose from a common etiology, and as such the schedular requirements for consideration under 38 C.F.R. § 4.16(a) (a single disability rated as 60 percent disabling) were met prior to February 7, 2019. The question remains, however, whether the remaining criteria for TDIU were met during this period. In this regard, a September 2018 application for TDIU notes that the Veteran’s disabilities affected his full-time employment in June 2017. The evidence shows he worked for more than 30 years as an ordinance equipment mechanic. He last worked full-time as a senior ordinance equipment mechanic in June 2016 and became too disabled to work in June 2017. The Board notes that the Veteran has been considered to be disabled by the Social Security Administration since June 2017 due primarily to osteoarthrosis and allied disorder and due secondarily to disorders of the back (discogenic and degenerative). Prior to February 7, 2019, the period on appeal, the Veteran was not service connected for any spine or radiculopathy disorders. The Board finds that at no time prior to February 7, 2019 did the Veteran meet the criteria for TDIU based upon the disabilities then service connected, as there is no competent evidence to suggest that those disabilities rendered him unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). In the absence of medical training or credentials on his part, the Veteran’s own contentions as to TDIU eligibility do not constitute competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.