Citation Nr: 21010285 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-57 177 DATE: February 24, 2021 ORDER Entitlement to a 100 percent initial evaluation for a service-connected right total knee arthroplasty from February 17, 2015, to February 17, 2016, is granted, subject to the applicable regulations concerning the payment of monetary benefits. FINDING OF FACT The Veteran underwent right total knee arthroplasty surgery on February 17, 2015, due to a diagnosis osteoarthritis of the right knee, a disability for which service connection was subsequently granted, effective from March 29, 2013. CONCLUSION OF LAW The criteria for a 100 percent initial evaluation for a service-connected right total knee arthroplasty from February 17, 2015, to February 17, 2016, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to November 1978. This matter comes to the Board of Veterans' Appeals (Board) from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In July 2019, the Veteran presented oral testimony in support of his appeal at a board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. Clarification of the issue on appeal The Veteran initially filed a claim to establish service connection for a right knee disability in March 2013. The AOJ denied this claim in a November 2013 rating decision, and the Veteran initiated an appeal that was ultimately abrogated by a February 2016 Board decision that granted service connection for osteoarthritis of the right knee. The Board’s allowance was implemented by the AOJ in a March 2016 rating decision; a 10 percent initial evaluation was assigned from March 29, 2013 – the date of the Veteran’s initial claim. Later in March 2016, the Veteran submitted a claim seeking a temporary total evaluations for his service-connected right knee disability, accompanied by private treatment records showing the he had undergone right total knee arthroplasty on February 17, 2015 – during the pendency of his appeal to establish service connection for a right knee disability. Based on this evidence, the AOJ promulgated a June 2016 rating decision in which the Veteran’s service-connected right knee disability was recharacterized to reflect the surgery, and the initial evaluation was staged from 10 percent to 100 percent on March 24, 2016, (the date of the AOJ’s receipt of the Veteran’s claim) and from 100 percent to 30 percent from April 1, 2016. Concerning the effective date of the 100 percent initial evaluation, the AOJ stated that such could not be assigned from the date of the February 2015 surgery because the Veteran’s March 2016 claim was filed more than one year after completion of such. As asserted by the Veteran at the July 2019 Board hearing, the February 2015 surgery was completed at a private facility upon a referral from VA, and thus, he believed that VA had constructive knowledge of the surgery and should rate him appropriately under 38 C.F.R. § 4.71A, Diagnostic Code 5055 without the need to file an additional claim specifically seeking such. Indeed, this surgery was completed during the appeal period for consideration by the AOJ in implementing the Board’s allowance in the March 2016 rating decision. Unfortunately, the Board cannot address whether VA had actual or constructive knowledge of the February 2015 surgery at the time of the March 2016 rating decision because the AOJ has not yet obtained updated VA treatment records since April 2014, and the private treatment records submitted by the Veteran do not reflect that the February 2015 surgery was completed based on a referral from VA, although his prior treatment at VA is noted. Nonetheless, the Veteran’s ability to pursue the benefits he seeks is not frustrated by these procedural missteps. Pertinently, the Board observes that the private treatment records showing the Veteran’s February 2015 right knee replacement surgery were received by VA during the appeal period of the March 2016 rating decision that, in implementing the Board’s allowance, assigned the initial evaluation for this disability. As such, that portion of the March 2016 rating decision did not become final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). With the above in mind, while the present appeal has been developed and adjudicated as seeking an earlier effective date for the assignment of a temporary total evaluation stemming from the Veteran’s February 2015 knee surgery, the Board will instead recharacterize the claim as seeking the same benefit as an increased initial evaluation. In the unique facts of this case, the Veteran and his representative have not expressed disagreement with the assigned initial evaluations for this disability prior to February 17, 2015 (10 percent) or from April 1, 2017, to the present (30 percent), and thus, the appeal is limited to this extent. As will be discussed below, the Board’s disposition in this matter is fully favorable to the Veteran, as the benefits he is seeking are granted in full. As such, he is not prejudiced by the Board’s actions in this regard. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected osteoarthritis of the right knee from February 17, 2015, to February 17, 2016, is granted. Due to the retrospective nature of the effective date for the award of service connection for osteoarthritis of the right knee in the March 2016 rating decision, the February 2015 total right knee arthroplasty was completed during the rating period for consideration. As such, a staged 100 percent initial evaluation for a service-connected right total knee arthroplasty is granted from February 17, 2015, to February 17, 2016, under 38 C.F.R. § 4.71A, Diagnostic Code 5055. As an aside, the Board observes that Diagnostic Code 5055 was revised, effective from February 7, 2021; however, as the Veteran’s appeal was pending prior to that date, the former version of this Diagnostic Code, which is more favorable to the Veteran, will be utilized. As noted above, the Veteran and his accredited representative stated at the July 2019 Board hearing that the above award satisfies the Veteran’s appeal, and thus, no further discussion of additional matters is necessary. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.