Citation Nr: 21026813 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 08-14 083 DATE: May 4, 2021 ORDER Entitlement to an initial evaluation of 60 percent, but not higher, from May 1, 2014, through June 11, 2017, for a right total knee replacement is granted, and an evaluation in excess of 60 percent from June 12, 2017, is denied. Entitlement to a total rating based on individual unemployability (TDIU) May 1, 2014, through June 11, 2017, is granted. FINDINGS OF FACT 1. For the entire claims period, the Veteran's total right knee replacement has been characterized by severe painful motion. 2. The functional impairment from the Veteran's service-connected disabilities was of such severity from May 1, 2014, through June 11, 2017, as to effectively preclude all forms of substantially gainful employment for which his education and occupational experience would otherwise make him qualified. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 60 percent, but not higher, from May 1, 2014, through June 11, 2017, for a right total knee replacement is granted, and the criteria for an evaluation in excess of 60 percent from June 12, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 2. The criteria for a TDIU from May 1, 2014, through June 11, 2017 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2002 to April 2004. In April 2012, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama; a transcript is of record. A June 2015 rating decision granted service connection for a total right knee replacement, previously rated as posttraumatic degenerative osteoarthritis, right knee. A 100 percent rating was assigned effective March 12, 2013, and a 30 percent rating was assigned from May 1, 2014. An August 2017 rating decision increased the rating to 60 percent, effective June 12, 2017. This claim was previously before the Board in March 2016, November 2017, July 2019, and October 2020 at which time the Board remanded it for additional development. The rating criteria related to the musculoskeletal system were updated effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Diagnostic Code 5055 was updated to shorten the period for a 100 percent rating following a total knee replacement from one year to four months. Id. Since the period for which the Veteran had a 100 percent rating following the right total knee replacement is not being disturbed herein and was greater than four months, the changes to Diagnostic Code 5055 do not affect this decision. 1. Entitlement to an initial evaluation in excess of 30 percent from May 1, 2014, and in excess of 60 percent from June 12, 2017, for a right total knee replacement Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5055, for a total knee replacement with prosthesis, a 100 percent evaluation is assigned for 1 year following implantation of the prosthesis. After that year, a minimum rating of 30 percent disabling is assigned. With intermediate degrees of residual weakness, pain or limitation of motion, the rater is directed to evaluate as analogous to Diagnostic Codes 5256, 5261, or 5262. A 60 percent evaluation is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran underwent a right total knee replacement on March 12, 2013. A temporary 100 percent rating was in place from the date of surgery through April 30, 2014. A 30 percent rating was assigned from May 1, 2014 through June 11, 2017, and a 60 percent rating is in effect from June 12, 2017. At June 2014 VA primary care treatment, the Veteran said that his kneecap slipped out of place and that it was very painful. The Veteran was unable to flex the knee, and it was painful to extend. September 2014 VA primary care treatment records indicate that the Veteran continued to have right knee pain. The Veteran said at March 2015 VA treatment that he began to feel increasing patella pain around April 2014 and that the knee did not give out on him. He described the pain as sharp and shooting with stabbing over the patella. The pain was rated eight to nine out of ten. On examination the Veteran could not tolerate any palpation of the patella or knee maneuvers due to pain and apprehension. The Veteran had a VA examination in May 2015 at which he reported difficulty with prolonged standing and walking. Range of motion was flexion to 100 degrees and extension to 20 degrees. There was evidence of pain with weightbearing, and there was diffuse periarticular tenderness to palpation. The Veteran complained of persistent right knee pain at June 2015 VA orthopedic treatment. It was noted that the Veteran injured his knee while gardening one year after the right knee replacement and that the pain was due to the right knee joint prosthesis. Joint stability tests were normal. There were frequent episodes of joint locking and joint pain. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. Private pain management treatment records from June 2015 and September 2015 include complaints of right knee pain. The Veteran had a knee examination arranged through VA in June 2017. He reported right knee flare-ups with severe pain. The functional loss from the right knee disability was difficulty walking or standing for long periods of time. On examination range of motion flexion was to 60 degrees and extension was to 0 degrees. There was also pain with flexion and extension, and pain with weight bearing. On repetitive use testing, flexion was to 55 degrees and extension was to 0 degrees. The examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain and lack of endurance caused functional loss with repetitive use. The examiner estimated that on repetitive use over time, flexion is to 50 degrees and extension is to 0 degrees, and with flare-ups, flexion is to 45 degrees and extension is to 0 degrees. There was no ankylosis, recurrent subluxation, or lateral instability. Joint stability tests were considered normal. The Veteran used a walker on a constant basis. The Veteran had a knee examination arranged through VA in December 2018. He reported worsening bilateral knee symptoms, including pain and decreased range of motion, over the past 18 months. The right knee pain was constant, and the Veteran rated it as nine out of ten. On examination range of motion was flexion to 90 degrees and extension to 0 degrees. There was evidence of pain with flexion, extension, and weightbearing. Pain was noted on examination and caused functional loss. There was not additional loss of function or range of motion after three repetitions. The right knee had a history of slight lateral instability, and there was no history of recurrent subluxation. Joint stability tests were normal. The residuals of the right knee replacement were chronic consisting of severe painful motion and weakness. The Veteran used a wheelchair on a constant basis due to the right knee total replacement. Giving the benefit of the doubt to the Veteran, the Board finds that he is qualified for a 60 percent rating for the period from May 1, 2014, through June 11, 2017 due to chronic residuals consisting of severe painful motion or weakness in the affected extremity. See 38 C.F.R. § 4.71A, Diagnostic Code 5055. The treatment records show consistent complaints of right knee pain rated as high as eight or nine out of ten. At the May 2015 examination there was evidence of pain with weightbearing, and there was diffuse periarticular tenderness to palpation. Furthermore, the record shows that there was pain on flexion and extension. Under the present decision, the Veteran has the maximum schedular evaluation of 60 percent for the right knee total replacement beyond the first year. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. Therefore, 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca are not applicable for this period because the Veteran already has the maximum schedular rating. The Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). Prior to engaging in an extraschedular analysis, the Board must determine whether the Veteran is in receipt of maximum benefit under the schedular alternatives. Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019) ("We hold that VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered."); see Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Veteran does not qualify for an evaluation in excess of 60 percent under the other Diagnostic Codes related to the knee. See 38 C.F.R. § 4.71A, Diagnostic Codes 5256 5262; 85 Fed. Reg. at 76463. However, the record reflects that the Veteran did not require frequent hospitalization for the right knee disability for the period from May 1, 2014, through June 11, 2017, and that the manifestations of the disability were not in excess of those contemplated by the assigned ratings. Although the Veteran experienced occupational impairment, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. Therefore, the Board has concluded that referral of this case for extra-schedular consideration both before and after June 12, 2017, is not in order. 2. Entitlement to a TDIU prior to June 12, 2017 It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A TDIU will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities resulting from a common etiology will be considered as "one disability." Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Under the present decision, for the period from May 1, 2014, through June 11, 2017, service connection was in effect for a right total knee replacement, rated 60 percent; left knee osteoarthritis with degenerative changes, rated 10 percent; a painful right knee scar, rated 10 percent; and right knee scars, rated noncompensable. The combined rating for the period is 70 percent. Since the combined rating is at least 70 percent with one disability rated at least 40 percent, the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a). The Veteran wrote in July 2014 that he had a high school education. He had last worked in April 2006 as a technician at a brick company. The May 2015 VA examiner opined that the right knee condition would prevent the Veteran from being able to perform physical labor involving extended walking, bending, or lifting. The Veteran would not be restricted in performing jobs in fields such as retail or clerical work since he was still ambulatory and could perform light lifting. It was also noted that the Veteran had not worked since 2006 due to his right knee problems. The June 2017 examiner wrote that knee pain, stiffness, limited range of motion, and difficulty with bending, prolonged standing, walking, or climbing stairs limited the Veteran's ability to perform occupational tasks. The record shows that the Veteran could not have done any job involving physical labor due to his service-connected knee disabilities. Furthermore, he would have had difficulty in any job requiring standing, walking, or bending. It is also noted that the pain from his knees would have interfered with concentration, causing further limitations in performing work related tasks. In light of the above, the Board finds that the most competent and probative evidence demonstrates that it is at least as likely as not that the Veteran was unemployable due solely to the combined effect of the service-connected disabilities from May 1, 2014, through June 11, 2017. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.