Citation Nr: 21014706 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-42 637 DATE: March 15, 2021 ORDER Entitlement to a disability rating of 60 percent for degenerative joint disease of the right knee for the period from March 9, 2015 to August 15, 2016 is granted. REMANDED Entitlement to a disability rating in excess of 30 percent for degenerative joint disease of the right knee beginning October 1, 2017 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the period from March 9, 2015 to August 15, 2016, the Veteran’s right knee disability is characterized by chronic residuals consisting of severe painful motion and weakness. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 60 percent for degenerative joint disease of the right knee for the period from March 9, 2015 to August 15, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.59, 4.71a, Diagnostic Code (DC) 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1977 to March 1981 and from May 1984 to February 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in February 2021. 1. Entitlement to a disability rating of 60 percent for degenerative joint disease of the right knee for the period from March 9, 2015 to August 15, 2016. On March 9, 2015, the Veteran submitted a VA 21-526b, Veteran Supplemental Claim, asserting that his right knee disability has worsened. The Veteran’s right knee disability is rated at 10 percent disabling from March 1, 2000, rated at 100 percent disabling from October 2, 2012, rated at 30 percent disabling from December 1, 2013, rated at 100 percent disabling from August 15, 2016, and rated at 30 percent disabling from October 1, 2017. The Veteran’s disability is rated at 100 percent disabling for the periods from October 2, 2012 to December 1, 2013 and from August 15, 2016 to October 1, 2017 following two separate knee replacement surgeries. The Veteran’s total right knee replacement and its residuals are rated under Diagnostic Code 5055. Diagnostic Code 5055 provides a 100 percent rating for one year following implantation of prosthesis; a 60 percent rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a 30 percent minimum rating for intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Effective February 7, 2021, the new regulation changed Diagnostic Code 5055 and added “Resurfacing” to the section title as it is a newer treatment approach similar to replacement and is now rated the same as replacement for the 100 percent rating period, but not afterwards. Notes were added to preclude an additional rating under 4.71a when there is a rating under this section and to clarify that replacement means a “total replacement.” The 100 percent rating was changed from 12 months to 4 months following implantation of prosthesis or resurfacing. During the February 2021 hearing, the Veteran testified that he experienced severe pain prior to his second surgery in 2016. The Veteran stated that he experienced symptoms of pain, swelling, weakness, and limited range of motion in his right knee. He has stated that it is hard for him to sit, stand, walk, or use stairs, and he loses his balance. In November 2016, the Veteran’s doctor since May 2014 submitted a note stating that the Veteran first presented with right knee replacement, which required oral pain medication including narcotic medications to help with his discomfort to maintain his activities of daily living. The Veteran has had to wear a brace on his knee daily, which did not give him adequate relief and physical examination of his right knee exhibited swelling, flexion instability, and lateral laxity. With the Veteran’s symptomatic instability, the doctor recommended total knee revision surgery as bracing, activity modification, oral medications, and therapy were not successful at alleviating his symptoms. Further, a March 2016 medical treatment record noted that the Veteran is suffering from post-prosthesis with chronic residuals, which has caused severe painful motion and he wears his support brace daily to help with the instability and weakness in his right knee. Resolving all reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s right knee disability warrants a rating of 60 percent under Diagnostic Code 5055 for the period from March 9, 2015 to August 15, 2016. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 30 percent for degenerative joint disease of the right knee beginning October 1, 2017 is remanded. During the February 2021 hearing, the Veteran testified that his right knee disability is worse than contemplated after his August 15, 2016 right knee surgery. As the most recent VA examination is from October 2018, the Board finds that a remand is necessary to afford the Veteran a new VA examination to determine the current severity of his service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran asserts that his service-connected disabilities preclude him from obtaining or following substantially gainful employment. See Hearing Testimony, February 2021. On his most recent TDIU application, the Veteran reported that he last worked full-time in December 2013 but became too disabled to work on January 6, 2016. He also reported that he worked part-time at Lowes in the paint department from April 21, 2014 to May 27, 2018. He noted that he missed five months of work due to illness and his highest gross earnings per month during this employment was 815 dollars. The Veteran reported that he had to fully stop working when his knee started to swell again. While a TDIU may be granted if employment is marginal, part-time positions are not de facto marginal employment. Whether part-time employment is marginal is determined by whether a veteran’s earned annual income does not exceed the poverty threshold for one person, or on a facts-found basis. As the Veteran’s claim for TDIU is inextricably intertwined with his claim for a higher rating for his right knee disability, the claim must be remanded. The matters are REMANDED for the following action: 1. Give the Veteran an opportunity to clarify his work history and submit an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU, to include the impact of his service-connected disabilities, and in particular, his right knee disability, on his ability to work. 2. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his knee disability. All necessary tests should be performed. All findings should be reported in detail. The examiner should identify all knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight -bearing and, with range of motion measurements of the opposite joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on the next page)   Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.