Citation Nr: 21010882 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 21-00 130 DATE: February 26, 2021 ORDER Entitlement to an effective date earlier than January 11, 2018, for an increased rating of 60 percent for status-post left total knee arthroplasty with revision arthoplasty is denied. Entitlement to an effective date earlier than January 11, 2018, for the grant of a separate, 10 percent, rating for right knee degenerative joint disease, instability is denied. REMANDED Entitlement to an effective date earlier than January 11, 2018, for a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to an effective date earlier than January 11, 2018, for dependents educational assistance (DEA) benefits under 38 U.S.C. Chapter 35 is remanded. FINDINGS OF FACT 1. The claim for increased ratings for left and right knee disabilities was received by VA on July 20, 2007. 2. The evidence does not indicate the Veteran met the schedular criteria necessary to establish an increased 60 percent disability rating for his status-post left total knee arthroplasty with revision arthroplasty prior to January 11, 2018. 3. The evidence does not indicate the Veteran met the schedular criteria necessary to establish a separate, 10 percent, disability rating for right knee degenerative joint disease instability prior to January 11, 2018. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 11, 2018, for a 60 percent rating for status-post left total knee arthroplasty with revision arthroplasty have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Code (DC) 5055. 2. The criteria for an effective date earlier than January 11, 2018, for a separate 10 percent disability rating for right knee instability have not been met. 38 U.S.C.A. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.124a, DC 5257 (pre-February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In this decision the Agency of Original Jurisdiction (AOJ) increased the Veteran’s rating for his service-connected left knee disability to 60 percent, assigned a separate 10 percent rating for right knee instability, and granted the Veteran a TDIU and DEA benefits, all effective January 11, 2018. The Veteran disagrees with the effective date of these awards.   Earlier Effective Date for Right and Left Knee Disability Ratings Factual Background The Veteran’s service treatment records show that he injured his left knee in service in 1963 and he underwent surgical repair at that time. A July 1967 Medical Board Report shows that he was not fit for duty due to instability and mild pain in the left knee, secondary to mild laxity of anterior cruciate and medical collateral ligaments and osteochondritis dissecans, postoperative excision of medical and lateral menisci and drilling of osteochondritis. The report also shows that he was referred to the Physical Evaluation Board. He was discharged from service in August 1967 due to physical disability. In April 1975, the AOJ granted service connection for postoperative residuals, left knee, and assigned a 10 percent rating, effective in September 1974. See February 1976 rating decision. In August 1984, the Veteran underwent a total left knee arthroplasty. By rating decision in October 1984, the AOJ assigned him a 30 percent rating effective October 1, 1985 (following a 100 percent rating from August 1984 to October 1985). In December 1994, he underwent exploratory left knee surgery which revealed a failed patellar component and failed polyethylene insert on the tibial component which were replaced. In July 2006, he underwent a total left knee revision and he stopped working at that time. VA outpatient records include an October 2006 report noting that the Veteran had left knee pain and excellent left knee range of motion. An October 2006 transmittal decision from the Social Security Administration (SSA) shows that the Veteran was awarded disability benefits effective in July 2006 with a primary diagnosis of disorders of back discogenic and degenerative, and a secondary diagnosis of osteoarthrosis and allied disorders. At an August 2007 VA examination, the Veteran complained of left knee pain which he described as sharp, 8 to 9 out of 10 in intensity, and aggravated by walking for a prolonged period or doing any type of activity. He said that pain medication took the edge off the pain, but that it did not eliminate it. He was noted to be using a cane due to his knees locking up on him and the examiner remarked that he was out of balance even with a cane. He also described recent symptoms in his other knee. He denied locking, stiffness or swelling, but he did complain of easy fatiguability. Findings revealed extreme tenderness to palpation in the left knee and minimal tenderness in the right knee. Range of motion was from 0 to 150 degrees in both knees, with crepitation on palpation of the knees with range of motion that was marked in the right knee. X-rays revealed tricompartmental osteoarthritis in the right knee with probable intraarticular bodies. The examiner reported that the Veteran seemed to have worsening condition of his knee. He also reported that “it will affect his employability but not totally disabled”. He said that “with the necessary treatment Veteran should be employable but for now he would be limited in his employability.” An October 2008 VA orthopedic care note reflects the Veteran’s report that his left knee was “doing well” and that he had no complaints with respect to his left knee. X-rays showed good positioning of left knee hardware. Range of motion was from 0 to 120 degrees. The Veteran was assessed as “doing well”. An October 2009 VA orthopedic care note similarly reflects the Veteran’s report that he had been “doing well” with no new issues. He also reported that his right knee bothered him “a bit” but had not changed in the past year. The Veteran reported at a VA examination in August 2011 that he had been doing well with respect to his left knee since his last examination in August 2007, but that his right knee pain was worsening. He described experiencing a dull to sharp right knee joint pain aggravated by standing more than 30 minutes and climbing a flight of stairs without stopping. He reported relief of symptoms with activity modification and pain medication every 6 hours. In the history section of the examination report, the examiner reported that the Veteran had been evaluated in 2009 by orthopedics at the Dayton VA Medical Center where he had reported no complaints pertaining to the left knee except for occasional discomfort. Range of motion was 0 to 120 degrees in each knee with no evidence of painful motion and no functional loss or additional limitation of motion after repetitive testing. A notation shows that no instability was noted anteriorly or posteriorly in either knee. VA outpatient records include a December 2011 orthopedic consultation record showing the Veteran’s complaint of knee arthralgia. Left knee findings were essentially unremarkable except for crepitus. There was full range of motion. Left knee x-rays showed that the left total knee arthroplasty was in place with no evidence of hardware failure. The Veteran was given an impression of left total knee arthroplasty without evidence of adverse features. A January 2012 orthopedic surgery progress note shows that the Veteran was “really doing quite well”. He was noted to have had an “‘episode’ of something feeling caught and rubbing the left knee” that cleared after two months. He was noted to have no problems at that time. A December 2012 VA surgical outpatient record shows that the Veteran reported for a consultation in October 2012 and was found to have a ruptured left knee Bakers cyst. He was referred at that time to the orthopedic clinic, but he was not seen in the orthopedic clinic until December 2012 at which time he reported having a “Charlie horse” in the Veteran’s left since “Aug” which had since resolved. Knee x-rays at that time were normal and findings showed normal range of motion with good alignment and normal balance and gait. There was no swelling, tenderness or crepitus. The Veteran was diagnosed as having total knee sound and stable. Various additional VA outpatient records from 2012 to 2018 reflect the Veteran’s complaints of right and left knee pain. Law and Regulations In addition to the general law that provides that the effective date is the later date of claim or the date that entitlement arose, the effective date for increased ratings may be awarded during the one-year period prior to receipt of the claim if it is factually ascertainable that an increase in disability had occurred during that one-year period. 38 C.F.R. § 3.400 (o)(2). Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055, a total rating (100 percent) is warranted for one year following prosthetic replacement of a knee joint. Once any applicable total rating period has elapsed, under DC 5055, a 30 percent rating is to be assigned where there are intermediate degrees of residual weakness, pain, or limitation of motion rated by analogy to DC 5256, 5261, or 5262. A 60 percent rating is to be assigned if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. The minimum rating that may be assigned for a prosthetic knee is 30 percent. Following the assignment of a total disability rating, the maximum schedular rating that can be assigned under DC 5055 is 60 percent. See 38 C.F.R. § 4.71a. Further, a rating of 60 percent is warranted if there are chronic residuals consisting of severe painful motion or weakness. See 38 C.F.R. § 4.71a, DC 5055; Tedesco v. Wilkie, 31 U.S. App. Vet. 260 (2019) (holding that the reference to “severe painful motion” in the criteria for a 60 percent rating under DC 5055, pertaining to total knee replacement, is not synonymous with “limitation of motion,” although limitation of motion may be considered in evaluating painful motion). Recurrent subluxation or lateral instability can be rated as slight (10 percent), moderate (20 percent), or severe (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. VA’s Schedule of ratings of the Musculoskeletal System was revised, effective February 7, 2021, to include the criteria under DC 5257. 38 C.F.R. § 4.71. In consideration of the February 7, 2021, effective date, the revised schedule does not apply to this current claim for an effective date earlier than January 11, 2018, for a higher rating for service-connected right and left knee disabilities. Analysis Left Knee Disability In the June 2018 rating decision on appeal, the AOJ increased the rating for the Veteran’s left knee disability to 60 percent, effective January 11, 2018. This was based on findings from a VA examination on January 11, 2018, which revealed severe painful motion and weakness in the left knee. 38 C.F.R. § 4.71a, DC 5055; Tedesco, 31 Vet. App. At 360. For the reasons explained below, the Board finds that a rating of 60 percent under DC 5055 is not warranted for the period prior to January 11, 2018. The date of claim from which this appeal arises is July 20, 2007, which is the date that the Veteran filed a claim for increased ratings for his right and left knee disabilities. The Veteran’s representative noted as much when he filed the June 2019 notice of disagreement. The matter was previously before the Board in June 2011 and November 2017 at which times the Board remanded the case to the AOJ for additional development. Having established July 2007 as the date of claim, it should initially be noted that the Veteran was assigned a 100 percent rating for his left knee disability from the date that he underwent a left total knee arthroplasty, on July 5, 2006, to September 1, 2007, at which time he was assigned a 30 percent rating. See 38 C.F.R. § 4.130. Thus, the period under consideration for an effective date earlier than January 11, 2018, for the 60 percent rating is from September 1, 2007. The next determination to be made is the date that entitlement arose. The Veteran and his representative assert that the Veteran’s knee symptoms have not changed since he filed his July 2007 claim and thus the 60 percent rating should go back to 2007. While there is no dispute from the evidence that the Veteran’s left knee pain dates to 2007, the evidence does not show that his left knee symptoms satisfied the criteria for a 60 percent rating at any point from September 1, 2007 to January 11, 2018. As noted above, the Veteran’s left knee range of motion at the August 2007 VA examination was nearly full, from 0 degrees extension to 150 degrees flexion. While the examiner noted that there was extreme tenderness to palpation in the left knee, he did not indicate that there was either extreme painful motion or left knee weakness. The only finding on range of motion was crepitation on palpation. Moreover, the Veteran was specifically noted to not have painful motion at a subsequent VA examination in August 2011. Range of motion findings at this examination revealed left knee extension to 0 degrees and flexion to 120 degrees. Notably, the Veteran reported at this examination that he had been “doing well” with respect to his left knee since his last examination in August 2007. Also, while pertinent VA outpatient records during this period contain various notations of left knee pain and that the Veteran was taking pain medication, they also reflect his reports of “doing well” since his total left knee revision in July 2006. In addition, they show normal or near normal ranges of motion in the left knee, and they do not indicate severe painful motion or weakness in the left knee. In consideration of the foregoing, the Board finds that the criteria for a 60 percent rating for the Veteran’s left knee disability were not met prior to the January 11, 2018 VA examination. Accordingly, January 11, 2018, is the date that entitlement arose. As this date is later than the July 2007 date of claim, it is the proper effective date and the claim for an effective date earlier than January 11, 2018, is denied. 38 C.F.R. § 3.400. Right Knee Instability The Veteran appeals the effective date assigned of January 11, 2018, for the assignment of a separate rating for right knee generative joint disease instability under Code 5257. 38 C.F.R. § 4.71a. He is also in receipt of a 10 percent rating for right knee degenerative joint disease associated with status post left total knee arthroplasty with revision under Codes 5260-5003. Id; See VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998) (a claimant who has arthritis or limitation of motion and instability of a knee, may be rated separately under Diagnostic Codes 5003 and 5257). In this case, the Veteran was found to have right knee instability at the January 11, 2018, examination. Findings at this examination revealed medial instability of 2+ (5-10 millimeters). However, there is no showing or complaints of right knee instability prior to this date in the pertinent VA examination reports or outpatient treatment records. Although the Veteran’s use of a cane was noted at the August 2007 VA examination, this was noted to be due to his knee locking and for balance issues, not for right knee instability. Moreover, the August 2011 VA examiner reported that no instability was noted on review of the Veteran’s claims file, and he found no anterior, posterior, medial or lateral right instability on examination. In consideration of the foregoing, the Board finds that the criteria for a separate rating for right knee instability under Code 5257 were not met until January 11, 2018. 38 C.F.R. § 4.71a (pre-February 7, 2021). Accordingly, January 11, 2018 is the date that entitlement arose. As this date is later than the July 2007 date of claim, it is the proper effective date and the claim for an effective date earlier than January 11, 2018, is denied. 38 C.F.R. § 3.400. REASONS FOR REMAND Earlier Effective Date for TDIU and DEA benefits The effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Therefore, an effective date of a TDIU claim may be awarded during the one-year period prior to receipt of the claim if it is factually ascertainable that an increase in disability had occurred during that one-year period. Otherwise, the effective date will be the date of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(2). In this case, VA construed the Veteran’s July 20, 2007 increased rating claim as a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The AOJ thereafter denied the TDIU claim in a December 2007 rating decision. The Veteran appealed this decision to the Board and, following two Board remands, the AOJ granted a TDIU in July 2018 assigning January 11, 2018 as the effective date. This is the date that the Veteran met the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). The Veteran’s representative acknowledges that the Veteran did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) prior to January 11, 2018, but he asserts that entitlement is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). In regard to extraschedular ratings, entitlement is determined in the first instance by VA’s Director of Compensation Service (Director). However, the RO and the Board are tasked with making the threshold determination that referral to the Director for extraschedular consideration is appropriate. Id.; see Bowling v. Principi, 15 Vet. App. 1, 10 (2001). For the period prior to January 11, 2018, the Board finds that the evidence is sufficient to refer the case to the Director of C&P. In this regard, the evidence includes the Veteran’s formal TDIU claim in October 2008 at which time he reported that he had to stop working at his job in apartment maintenance on July 5, 2006, due to his back and knee disabilities. In addition, VA medical records show that he underwent revision of the total left knee replacement on July 5, 2006, and he was awarded disability benefits from the Social Security Administration effective July 5, 2006. There is also a July 2007 statement from the Veteran asserting that he endured six surgeries on his left knee and he also had damage to his right knee due to overcompensating for the left knee. He explained that he lost his job in “November” because he was no longer given a medical excuse. He said he attempted to work light duty for one and a half days, but he passed out due to “excoriating pain”. He added he had no choice but to apply for SSA benefits and he concluded by opining that “there is no way that I will be able to work in my present condition”. In terms of medical evidence, there is an August 2007 VA examination report that contains the examiner’s opinion that the Veteran’s knee disability would affect employability and that with necessary treatment the Veteran “should be employable but for now he would be limited in his employability”. Additionally, a VA examiner in August 2011 opined that the Veteran’s knee disabilities would affect his ability to work, either to gain or maintain employment with a physically-exerting job, consistent with his skill set, but he would be able to maintain a sedentary position. In consideration of the evidence as outlined above, a remand is warranted for extraschedular consideration of a TDIU for the period prior to January 11, 2018. Also, the Veteran’s claim for an earlier effective date for the grant of eligibility to DEA benefits under 38 U.S.C. Chapter 35 is inextricably intertwined with the TDIU issue being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, consideration of the earlier effective date claim for DEA benefits must be deferred pending the resolution of the TDIU claim. The matter is thus REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to January 11, 2018, to the Director of Compensation Service for extraschedular consideration. 2. Then, readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the appeal to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shawkey, Anne M. 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.