Citation Nr: 21010258 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-33 883 DATE: February 24, 2021 ORDER As the claim is withdrawn, the claim of entitlement to a rating in excess of 60 percent for left knee, total knee replacement (left knee disability) from February 27, 2018, is dismissed. A rating in excess of 30 percent for total left knee arthroplasty (left knee disability) from December 1, 2016, to February 27, 2018, is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to May 12, 2018, and in excess of 20 percent therefrom for diabetic neuropathy, left lower extremity, femoral nerve, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. On December 8, 2020, prior to the promulgation of a decision in the appeal, the Veteran notified the Board at his hearing on appeal that he sought to withdraw his claim for entitlement to a rating in excess of 60 percent for left knee disability from February 27, 2018. 2. From December 1, 2016, to February 27, 2018, the Veteran’s left knee disability did not more nearly approximate chronic residuals of a prosthetic replacement of the knee joint consisting of severe painful motion or weakness in the affected extremity. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to a rating in excess of 60 percent for left knee disability from February 27, 2018 by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a rating in excess of 30 percent for left knee disability have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to January 1969. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The record reflects that the Veteran submitted in July 2018 an invalid opt-in form for the Rapid Appeals Modernization Program (RAMP). In a July 2018 letter, VA notified the Veteran of the error in his election and provided him with 60 days to complete a new RAMP form. VA did not receive a response during the allotted time period and prior to activation of the appeal at the Board. Therefore, the appeal will be addressed in the appeal system (legacy) in place prior to enactment of the modernized review system. 38 C.F.R. § 19.2(d). In December 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The VLJ held the record open for 30 day at the representative’s request for the submission of treatment records. See Hearing Transcript at 3 (December 2020). It is noted that, subsequently, VA received additional treatment records, which are now associated with the claim file, from the Veteran’s representative. See Medical Treatment Record – Government Facility (December 2020). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 60 percent for left knee disability from February 27, 2018. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, prior to the promulgation of a decision in the appeal, the Veteran (appellant) notified the undersigned VLJ at the December 8, 2020 hearing on appeal that he sought to withdraw his appeal for the claim for entitlement to a rating in excess of 60 percent for left knee disability from February 27, 2018. See Hearing Transcript (December 2020). This request was made with full understanding of the consequences and in consultation with his attorney. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the matter and it is dismissed. 2. Entitlement to a rating in excess of 30 percent for left knee disability from December 1, 2016 to February 27, 2018. A May 1969 rating decision granted service connection for left knee internal derangement and assigned a 10 percent rating effective from January 4, 1969 under Diagnostic Code (DC) 5299-5257. A March 2015 rating decision rated left knee disability, degenerative joint disease with limitation of flexion (previously rated under DC 5257) at 10 percent under Diagnostic Code 5260. Also, the rating decision assigned separate rating effective from September 11, 2014, as follows: A 10 percent rating for left knee instability under DC 5010-5257 and a zero percent rating for left knee limitation of extension under DC 5010-5261. In December 2015, VA received the Veteran’s claim for increased compensation based on unemployability. Thereafter, a July 2016 rating decision a temporary total rating (100%) from October 5, 2015 for left knee, total knee replacement, and a 30 percent rating assigned from December 1, 2016, following expiration of the regulatory 100 percent following knee replacement (prosthesis). See 38 C.F.R. § 4.71A, DC 5055. This appeal arises from the Veteran’s disagreement with the evaluation assigned his left knee disability following expiration of the 100 percent temporary one-year rating. A June 2018 rating decision assigned a 60 percent rating for left knee, total knee replacement, from February 27, 2018. The Veteran has limited his appeal to the period prior February 27, 2018—in other words, the period from December 1, 2016, to February 27, 2018. See Hearing Transcript (December 2020). The Veteran seek a rating in excess of 30 percent prior to February 27, 2018. At his December 2020 hearing, the Veteran reported that his October 2015 total knee replacement surgery did not bring him the relief he expected; physical therapy did not relieve his instability; he had continued swelling—he stated that he has to elevate his leg at home; and that his knee gives out. See Hearing Transcript (December 2020). The Board concludes that the preponderance of the evidence is against a rating in excess of 30 percent from December 1, 2016 to February 27, 2018 for the Veteran’s left knee disability status-post total knee replacement. The evidence reflects that left knee disability was not more nearly manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity. The Veteran is currently assigned a 30 percent rating for left knee disability status-post total knee replacement under Diagnostic Code 5055, governing total knee replacements. Prior to February 7, 2021, a 100 percent rating was warranted for one year following implantation of the prosthesis. From February 7, 2021, a 100 percent rating is assigned for 4 months following implantation of the prosthesis or resurfacing. Under both the old and new regulation, a 60 percent rating is warranted for a total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Also, under both the old and new regulation, 30 percent rating is the minimum rating assigned following knee replacement. Intermediate degrees of residual weakness, pain, or limitation of motion (a level of disability in between those contemplated by the 30 and 60 percent ratings) are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, DC 5055. See 38 C.F.R. § 4.71A, Diagnostic Code 5055. It is noted that the reference to “severe painful motion” in the criteria for a 60 percent rating under Diagnostic Code 5055, pertaining to total knee replacement, is not synonymous with “limitation of motion,” although limitation of motion may be considered in evaluating painful motion. See Tedesco v. Wilkie, 31 Vet. App. 360 (2019). Turning to the evidence of record, the Veteran has submitted private treatment records, including physical therapy records from Stony Brook Medicine, showing that he underwent physical therapy for his left knee from November 2015 to May 2016, which predates the appeal period in question. See Medical Treatment Record - Non-Government Facility (March 2018). The available treatment records for the appeal period in question from December 2016 to February 2018 show that, in December 2016, the Veteran was doing well with total knee replacement. See CAPRI (May 2018). Further, it shows that the Veteran had temporary relief of symptoms after his October 2015 total knee replacement, including ability to exercise five days a week and golf twice a week as noted in March 2017. See CAPRI (June 2018). He reported doing cardio exercises, biking for 20 minutes, running on the treadmill for 20 minutes with total time spent exercising amounting to one and a half hours. Id. His pain level at that time was rated at 0. Id. In April 2017, he also denied pain. See CAPRI (May 2018). VA examination conducted in February 2018 also shows that his left knee pain was well-controlled after the October 2015 surgery and subsequent physical therapy, but the Veteran began experiencing pain again after a short period of time. See CAPRI (December 2015, June 2016); C&P Exam (February 2018). At the examination, the Veteran reported that, once the winter set in again a few months later, he started complaining of pain again. It was noted that his left knee pain had been constant for the preceding six to eight months, and is worsened with standing for prolonged periods of time and going up and down steps. The examination report notes that, for pain control, he used ice and rested with some relief. The Veteran also reported occasional swelling, for which he used an elastic sleeve. He was noted to use Advil approximately 3-4 nights per week. The Veteran also reported that he retired in 2015 from his job as an insurance producer, which required him to travel and walk a lot. From December 2016 to February 2018, neither the lay nor medical evidence in this case establishes that the left knee disability more nearly approximated the criteria for a higher evaluation than the currently assigned under Diagnostic Code 5055 either before or after the February 7, 2021 amendment. Medical evidence does not reflect symptoms amounting to severe painful motion or weakness in the affected area. Instead, it reflects that the Veteran experienced relief after his October 2015 total knee replacement and reported no pain on several occasions including in March and April 2017. While the Veteran reported that his left knee has been unstable since his surgery in 2015, during treatment in March and April 2017 he reported being able to exercise for more than an hour five days a week, including biking and running as well as recreational activities including golfing, which suggests that he was able to ambulate comfortably and without knee giving way. Given this, to the extent that this testimony and/or statements suggest otherwise for the relevant period of time at issue here, the reports are not credible. Moreover, VA treatment records do not show any treatment or repots of pain of the left knee from December 2016 to February 2018. The record also contains no private treatment for left knee during that time frame, and the Veteran has not reported undergoing treatment for his left knee during that time. Both the lay and medical evidence are probative here. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Although the Veteran believes he met the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. The Board is sympathetic to the Veteran’s reports of ongoing instability and swelling since his October 2015 surgery, but finds that he has been in receipt of 60 percent rating since his reports of such at his February 27, 2018 VA examination. See Rating Decision-Codesheet (February 2019). His recollection of the state of his left knee impairment are not congruent with his more contemporaneous statements and activities. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Board has considered whether a higher disability evaluation is available under any other potentially applicable provision of the Rating Schedule. However, a higher evaluation is not warranted from December 2016 to February 2018 based on any other provision of the Rating Schedule. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). A higher rating is not warranted under Diagnostic Code 5256 (ankylosis), as neither the lay nor the medical evidence reflects ankylosis or the functional equivalent. Notably, the medical records from December 2016 to February 2018 show no limitation of motion or flare-ups. A separate rating is not warranted under Diagnostic Code 5257 (recurrent subluxation or lateral instability. The Board accepts that objective evidence of instability is not necessarily required to satisfy the criteria for a rating under DC 5257. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). However, here, the Veteran has not indicated any instances of the left knee giving way from December 2016 to February 2018. The Veteran did not report using any assistive device during the appeal period in question. He did, however, report exercising and playing golf, as discussed above. A higher or separate rating is not warranted under Diagnostic Code 5258 because neither the lay nor the medical evidence establishes that the Veteran had frequent episodes of “locking,” pain, and effusion into the joint of the left knee during the applicable period. A higher or separate rating is not warranted under Diagnostic Code 5259 because this would violate the rule against pyramiding. In this regard, the Veteran’s total knee replacement includes removal of cartilage (the meniscus). See 38 C.F.R. § 4.14 (Evaluation of the same disability under various diagnoses is to be avoided; Further, a rating under DC 5055 is more favorable at 30 percent, rather than under DC 5259, which affords a 10 percent rating for removal of cartilage, symptomatic. A higher separate rating is not warranted under Diagnostic Code 5261-63 because neither the lay nor the medical evidence reflects limitation of extension, impairment of tibia and fibula; or genu recurvatum during the applicable period. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for higher ratings, as explained and discussed above. Because the disability has not met the criteria for a higher evaluation at any time during the appeal period from December 2016 to February 2018, there is no basis for a staged rating. Hart v. Mansfeld, 21 Vet. App. 505 (2007). Accordingly, the claim for increase is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 3. Entitlement to a rating in excess of 10 percent prior to May 12, 2018, and in excess of 20 percent thereafter for diabetic neuropathy, left lower extremity. The Veteran asserts that he experiences tingling, numbness and pain of the left lower extremity including the foot; that the pain shoots down to his foot at least twice a day for 40 minutes to an hour; and he needs to extend his legs, walk on it or massage it. See Hearing Transcript (December 2020). To ensure that VA has met its duty to assist, the Board finds that a remand is necessary to obtain VA treatment records. 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). A review of the Veteran’s VA treatment records discloses that private medical records relevant to the appeal had been scanned into the VA medical records system (Vista-Imaging-scanned documents). However, copies of these scanned non-VA records are not included in the claims file. Therefore, remand is necessary to associate copies of these scanned record with the claims file. 4. Entitlement to a TDIU. The Board finds the Veteran’s claim for a TDIU is inextricably intertwined with the claims for increase remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, adjudication is deferred pending the outcome of the claims. Additionally, the record shows that the Veteran is in receipt of Social Security Administration (SSA) benefits. SSA Inquiry shows that he has been entitled to SSA benefits since September 2010. See SSA Profile and Benefit Data (September 2018). In October 2018, a request for SSA medical records was submitted online. See Correspondence (October 2018). The record, however, contains no indication that the agency of original jurisdiction (AOJ) has received a response or has made any more attempts to obtain these potentially relevant SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (the Federal Circuit Court acknowledged that VA’s duty to assist was limited to obtaining relevant SSA records and defined relevant records as “those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate” the claim). Therefore, to ensure that VA has met its duty to assist, remand is necessary to obtain those records associated with his SSA disability award. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from April 2020 to the Present. Associate copies of all treatment records from private treatment providers that have been scanned into the VISTA Imaging system with the Veteran’s claims folder. 2. Obtain all SSA records, including a copy of the award letter. Any negative search results should be noted in the record. 3. Afford the Veteran an opportunity to complete a VA Form 21-4142 for all non-VA medical providers seen for his symptoms of left lower extremity neuropathy since October 2014. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 4. Conduct any other development deemed necessary and readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.