Citation Nr: 21026072 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-35 913 DATE: April 29, 2021 ORDER From June 1, 2016 to March 29, 2018, an increased disability rating of 60 percent (but not higher) for service-connected residuals of a left total knee arthroplasty (left TKA residuals) is granted. From June 1, 2019, an increased disability rating of 60 percent (but not higher) for service-connected left TKA residuals is granted. From June 1, 2016 to March 29, 2018 and from June 1, 2019, a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The probative evidence of record including the findings of the December 2016, January 2017 and March 2017 VA treatments, a private physician’s opinion and the Veteran’s own competent and credible testimony indicates that the Veteran left knee residuals were manifested by severe pain and weakness following a total knee replacement in April 2015. 2. The probative evidence of record including the findings of a November 2018 medical examination, a private physician’s opinion and the Veteran’s own competent and credible testimony indicates that the Veteran left knee residuals were manifested by severe pain and weakness following a total knee replacement in March 2018. 3. The probative evidence of record including a November 2018 medical examination, a private physician’s opinion and the Veteran’s competent and credible testimony indicates that the Veteran’s various service-connected disabilities of the knee prevented him from obtaining employment which would require physical or non-physical duties. CONCLUSIONS OF LAW 1. From June 1, 2016 to March 29, 2018, the criteria for a rating of 60 percent (but not higher) for service-connected left TKA residuals have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5055. 2. From June 1, 2019, the criteria for a rating of 60 percent (but not higher) for service-connected left TKA residuals have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5055. 3. From June 1, 2016 to March 29, 2018 and from June 1, 2019, the criteria for a TDIU rating have been met. 38 U.S.C. §§ 1154 (a), 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to October 1985. These matters are before the Board of Veterans’ Appeals (Board) from May 2018 and November 2019 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020 a Board hearing was held before the undersigned; a transcript is associated with the record. 1. From June 1, 2016 to March 29, 2018, an increased disability rating of 60 percent (but not higher) for service-connected left TKA residuals is granted. Legal Criteria 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. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. Prior to the regulatory change, under DC 5055, prosthetic replacement of a knee joint is rated as 100 percent disabling for one year following implantation of the prosthesis. The one-year total rating begins after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, a 60 percent rating will be 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 are rated by analogy to DCs 5256, 5260, 5261, or 5262. The minimum disability rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a. As of February 7, 2021, under the amended criteria of DC 5055, the prosthetic replacement of a knee joint is rated as 100 percent disabling for four months following implantation of the prosthesis or resurfacing. Thereafter, a 60 percent rating will be 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 are rated by analogy to DCs 5256, 5260, 5261, or 5262. The minimum disability rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a. At the conclusion of the 100 percent evaluation period, the rater is to evaluate resurfacing under DCs 5256-5262 and there is no minimum evaluation for resurfacing. DC 5256 provides for a 40 percent rating for unfavorable ankylosis with knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is provided for unfavorable ankylosis with the knee in flexion between 20 degrees and 45 degrees. A 60 percent rating is provided for extremely unfavorable ankylosis with the knee in flexion at an angle of 45 degrees or more DC 5260 provides ratings based on limitation of flexion of the leg. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. The maximum 30 percent rating is warranted for flexion limited to 15 degrees. DC 5261 provides ratings based on limitation of extension of the leg. 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. Prior to the regulatory change, DC 5262 provided a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating for moderate knee or ankle disability; a 30 percent rating for marked knee or ankle disability; and a 40 percent rating for nonunion of the tibia and fibula with loose motion requiring a brace. The Board notes that terms such as ‘slight,’ ‘moderate,’ ‘severe,’ and ‘marked’ are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. As of February 7, 2021, under the amended criteria, under DC 5262, a 40 percent rating is for nonunion of the tibia and fibula with loose motion requiring a brace. Malunion of the tibia and fibula are to be evaluated under DC 5256, 5257, or 5261 for the knee, or Medial tibial stress syndrome (MTSS), or shin splints: a non-compensable rating is afforded for a treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating for when requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating for when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating for when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. For diagnostic codes that are based on limitation of motion, VA must consider assigning a higher rating for functional loss, including functional loss due to flare-ups or the factors listed below. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). These factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. For diagnostic codes that are based on limitation of motion, pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). These rules have been considered in the analysis below. 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 required criteria; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Factual Background The Veteran was afforded an October 2016 VA examination during which the examiner reported that the Veteran’s residuals of the left TKA were manifested by intermediate degrees of residual weakness, pain or limitation of motion. The Veteran displayed 90 degrees flexion, 0 degrees extension of the left knee. Pain was noted on examination which resulted in functional loss. The was evidence of pain with weight bearing and flexion but no objective evidence of localized tenderness or pain of palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions which did not result in additional functional loss or range of motion. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time but that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner indicated that the examination was not being conducted during a flare up but that it was medically consistent with the Veteran’s statements describing functional loss during flare ups. The examiner estimated that pain, fatigue and lack of endurance during a flare up would limit the Veteran’s range of motion of the left knee to 85 degrees flexion, 0 degrees extension. The examiner noted that the Veteran has less movement than normal on the left side and a disturbance of locomotion. No instability of the left knee joint was noted. The examiner rated both the Veteran’s left knee flexion and extension at 5/5 and indicated that there was no reduction in muscle strength. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have ankylosis on either the right or left side. Joint stability testing of the left knee was normal. The examiner also indicated that the Veteran did not have a history of shin splints. Finally, the examiner noted that the Veteran required constant use of a cane. An August 2016 VA treatment note indicates that the Veteran was still having persistent knee tenderness with a sensation of electric shock pains along his scar and general pain levels which mimic those he had prior to the surgery. The conducting physician reported that the Veteran’s symptoms have not improved despite a trial of pain medication. The Veteran reported that he still has to use a cane for fear of falling due to his left knee giving out. The Veteran indicated that he worked as a machine operator prior to his TKA but he has not been able to return to this line of work because of the amount of standing that he has to do. At a November 2016 VA treatment, the Veteran reported that his left knee pain was at a 10/10. The Veteran reported that he has had left knee pain since his surgery in April 2015 and that it has gotten worse. A private medical treatment record note from January 2017 indicates that the Veteran reported difficulty walking, difficulty with daily activities, joint stiffness, joint swelling, muscle tenderness, muscle weakness and knee pain. The Veteran displayed 55 degrees extension, 0 degrees extension of the left knee. At a March 2017 VA treatment, the Veteran reported that his knee pain is still severe and left knee continues to give way. The Veteran was afforded a March 2017 VA examination during which the examiner opined that the Veteran’s residuals of the left TKA were manifested by intermediate degrees of residual weakness, pain or limitation of motion. The Veteran reported that his left knee is always in pain and that the condition has gotten worse. The Veteran reported that he still has pain in the left knee around the kneecap on both sides and that he has difficulty with walking and standing. The Veteran reported that he loses his balance and that his left knee sometimes gives out. The Veteran displayed 110 degrees flexion, 0 degrees extension of the left knee. Pain was noted on examination which resulted in functional loss. The was evidence of pain with weight bearing and flexion but no objective evidence of localized tenderness or pain of palpation of the joint or associated soft tissue. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions which did not result in additional functional loss or range of motion. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time but that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner indicated that the examination was not being conducted during a flare up but that it was medically consistent with the Veteran’s statements describing functional loss during flare ups. The examiner estimated that pain, fatigue and lack of endurance during a flare up would limit the Veteran’s range of motion of the left knee to 105 degrees flexion, 0 degrees extension. The examiner noted that the Veteran has less movement than normal on the left side and a disturbance of locomotion. No instability of the left knee joint was noted. The examiner rated both the Veteran’s left knee flexion and extension at 5/5 and indicated that there was no reduction in muscle strength. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have ankylosis on either the right or left side. Joint stability testing of the left knee was normal. The examiner also indicated that the Veteran did not have a history of shin splints. Finally, the examiner noted that the Veteran required constant use of a cane and regular use of a brace. The Veteran submitted a February 2019 private medical opinion from his chiropractor who indicated that following the Veteran’s left knee surgery in 2015, his severe knee pain returned with “clicking” being felt in the knee and “buckling” of the knee joint when walking. The physician indicated that the Veteran recalled limited range of motion along with intermediate degree of residual weakness of the left knee. The physician opined that the Veteran’s left TKA residuals with associated left lower extremity weakness more likely than not reflects the 60% rating of the knee replacement with chronic residuals consisting of painful motion or weakness in the affected extremity and has since 2014. At the Board hearing, the Veteran testified that his first knee replacement failed. The Veteran explained that the material in his leg was damaged and that his knee was out of alignment which put him in a lot of pain. The Veteran testified that his knee would give out due to weakness and that he had to use a walker for balance and strength. Analysis The Board finds that the preponderance of the evidence is in favor of a finding that from June 1, 2016 to March 29, 2018, the Veteran’s service-connected left TKA residuals were manifested by severe painful motion and weakness. The findings of the December 2016, January 2017 and March 2017 VA treatments indicate that the Veteran experienced severe pain and weakness of the left knee. The Board also assigns probative value to the Veteran’s private physician’s opinion that the Veteran’s left TKA residuals more likely than not reflects symptoms of painful motion or weakness and has since 2014. The Board notes that the physician supported their opinion with a rationale and indicated a familiarity with the Veteran’s medical history. Additionally, the Veteran provided competent and credible testimony that he was still in a lot of pain after his first knee surgery and had to use a walker because his left knee would give out. Layno v. Brown, 6 Vet. App. 465, 469 (1994) Considering the evidence of severe pain and weakness, the Board resolves reasonable doubt in the Veteran’s favor and finds that the 60 percent rating for severe residuals after total knee replacement surgery more closely approximates the Veteran’s overall disability picture for his service-connected left TKA residuals for this portion of the period on appeal. Accordingly, an increased rating of 60 percent is granted from June 1, 2016 to March 29, 2018 for the Veteran’s service-connected left TKA. Considering possible even higher ratings, 60 percent is the maximum rating under Code 5055. A 100 percent rating (the only other available higher rating under Code 5055) is only warranted for the one-year period following knee replacement surgeries, which the Veteran received. 38 C.F.R. § 4.71a, DC 5055. 2. From June 1, 2019, an increased disability rating of 60 percent (but not higher) for service-connected left TKA is granted. Factual Background The Veteran underwent another left knee replacement in March 2018 to correct the failed knee replacement. At a November 2018 medical examination, the conducting physician examiner opined that the Veteran’s left TKA residuals were manifested by chronic residuals consisting of severe painful motion or weakness. The Veteran displayed 110 degrees flexion, 10 degrees extension of the left knee. The Veteran was able to perform repetitive use testing with at least three repetitions which resulted in a loss of range of motion. The was evidence of pain with weight bearing and flexion and objective evidence of localized tenderness or pain of palpation of the joint or associated soft tissue. There was objective evidence of excess fatiguability, disturbance of locomotion and interference with standing. The Veteran indicated that the longer he walks, the more discomfort occurs in the knee and that extending standing limits mobility of the knee. The physician explained that the Veteran’s strength in the left knee upon flexion and extension was 4/5. The physician noted that there was a history of moderate recurrent subluxation, moderate lateral instability and a history of recurrent effusion. The physician also explained that the Veteran has had frequent episodes of joint locking, pain effusion on the left side. Finally, the physician explained that the Veteran’s condition impacts his ability to work because he is unable to stand, walk, or lift strenuously or for extended periods of time. The Veteran testified at the Board hearing that after the second knee replacement, there was no improvement and that his symptoms basically stayed the same. The Veteran testified that he has trouble walking and using the stairs and that he cannot stoop or bend. The Veteran further testified that he is in a lot of pain and that his left knee buckles and thus he has to use a walker and sometimes a cane. The Veteran also testified that he takes medications for his left knee. Additionally, the Veteran testified that he has flare-ups of the left knee three to four times a week. The Veteran explained that his pain is a 10/10 during these flare-ups. The Veteran also testified that when the weather is bad, his left knee constantly hurts. Analysis The Board assigns probative value to the findings of the November 2018 examination which indicated that the Veteran’s left knee TKA residuals were manifested by chronic residuals consisting of severe painful motion or weakness. The Board notes that the conducting physician provided a thorough examination and supported their findings with a rationale. Additionally as indicated above, the Veteran’s chiropractor opined in February 2019, that the Veteran’s left TKA residuals with associated left lower extremity weakness more likely than not reflects the 60% rating of the knee replacement with chronic residuals consisting of painful motion or weakness in the affected extremity and has since 2014. The Veteran also provided competent and credible testimony that after the second knee replacement, there was no improvement and that his symptoms of left knee pain and instability basically stayed the same. See Layno supra. Considering the evidence of severe pain and weakness, the Board resolves reasonable doubt in the Veteran’s favor and finds that the 60 percent rating for severe residuals after total knee replacement surgery more closely approximates the Veteran’s overall disability picture for his service-connected left TKA residuals for this portion of the period on appeal. Accordingly, an increased rating of 60 percent is granted from June 1, 2019 for the Veteran’s service-connected left TKA. Considering possible even higher ratings, 60 percent is the maximum rating under Code 5055. A 100 percent rating (the only other available higher rating under Code 5055) is only warranted for the one-year period following knee replacement surgeries, which the Veteran received. 38 C.F.R. § 4.71a, DC 5055. 3. From June 1, 2016 to March 29, 2018 and from June 1, 2019, a TDIU rating is granted. Legal Criteria The Veteran is already in receipt of temporary 100 percent ratings for his left TKA from April 22, 2015 to May 31, 2016 and then from March 30, 2018 to May 31, 2019. A TDIU is considered a lesser benefit than the 100 percent rating, and the award of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or greater may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). Bradley v. Peake, 22 Vet. App. 280 (2008). The record does not reasonably raise any such matter at any time on appeal. It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran’s level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Eligibility A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) (“[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.”) (emphasis added.) A claim for a TDIU is considered a claim for an increase. In assigning effective dates for increases, except as provided in paragraph § 3.400(o)(2) and § 3.401(b), the effective date is date of receipt of claim or date entitlement arose, whichever is later. As an exception to this general rule, § 3.400(o)(2) provides that the effective date is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date; otherwise, the effective date is the date of claim. Id. At no point during the period on appeal did the Veteran meet the schedular criteria for a TDIU claim. However, because the Veteran indicated that he was unemployable due to his service-connected conditions in his TDIU application, the question of a TDIU rating has been raised on an extraschedular basis. See 38 C.F.R. § 4.16(b). Effective Date Although the Veteran did not formally file his TDIU claim until August 2019, the Board notes that during the pendency of the Veteran’s claim for an increased rating for his left knee TKA residuals, the record raised the issue of unemployability. See August 2016 VA treatment note. The Veteran filed his claim for an increased rating on April 20, 2015 and thus the Board finds that the Veteran’s TDIU claim is part and parcel of his increased rating claim. See, e.g. Rice v. Shinseki, 22 Vet. App. 447 (2009) (a TDIU rating claim is part of a claim for a higher rating when asserted by the Veteran or raised by the record, for example, by evidence of unemployability). Factual Background The Veteran’s TDIU application indicates that he employed up until April 2015 as a machine operator. The Veteran’s application also indicates that he worked as a forklift operator for various employers dating back to January 1986. The Veteran did not have any other education or training before he became too disabled to work and his highest level of education was high school. An August 2016 VA treatment note indicates that the Veteran worked as a machine operator prior to his TKA but he has not been able to return to this line of work because of the amount of standing required. At an October 2016 VA examination, the conducting physician opined that the Veteran’s left TKA impact his ability to perform occupational tasks because he was unable to do extended walking. In November 2018, a physician opined that the Veteran’s disabilities impact his ability to perform occupational tasks because he is unable to stand, walk, or lift strenuously for extended periods of time. The Veteran testified at the Board hearing that he has never done any kind of jobs where he was sitting at a disk because he is unable to sit for prolonged periods of time. The Veteran also testified that the medications that he takes for his knee makes him sleepy and drowsy which affects his ability to focus and concentrate. Analysis The Board finds that, during this portion of the period on appeal, the Veteran has been unable to obtain or maintain employment requiring physical labor. This is consistent with the findings of the November 2018 examination and the Veteran’s testimony (which the Board finds to be competent, credible, and accurate) that he cannot perform work which involves bending his knees. Regarding whether the Veteran could obtain and maintain employment that would not require physical activity, the Board finds that the Veteran does not have the educational background, training, or work history to obtain and maintain employment that did not involve physical labor. He worked as a machine operator during and after service, his highest level of education is high school, and he has not obtained any training or certification in non-physical labor fields. Additionally, he testified at the Board hearing that he is unable to sit for extended periods of time and that his pain medication makes it difficult for him to focus and concentrate. Given the above, the Board finds that the Veteran’s service-connected disabilities rendered him unable to obtain or sustain substantially gainful employment. Thus, TDIU granted (on an extraschedular basis for the periods specified.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.