Citation Nr: 21030165 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-02 112 DATE: May 18, 2021 ORDER The temporary total (100 percent) rating assigned for the year following the Veteran's total right knee replacement was properly terminated as of September 1, 2017, and, as of such date, a rating of 60 percent, but no higher, for status post total right total knee replacement is granted, subject to the laws and regulations governing the payment of monetary awards. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT 1. The Veteran underwent a total right knee replacement on July 19, 2016, on which date he was assigned a temporary total (100 percent) rating, which was terminated effective as of September 1, 2017, more than one year after the Veteran's total right knee replacement surgery. 2. Resolving all doubt in his favor, as of September 1, 2017, the Veteran's status post total right total knee replacement most nearly approximated chronic residuals consisting of severe painful motion or weakness. CONCLUSION OF LAW The temporary total (100 percent) rating assigned for the year following the Veteran's total right knee replacement was properly terminated as of September 1, 2017, and thereafter, the criteria for a rating of 60 percent, but no higher, for status post total right total knee replacement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1981 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision issued by a Regional Office of the Department of Veterans Affairs (VA), which awarded a temporary total (100 percent) rating as of July 19, 2016, the date of the Veteran's total right knee replacement and a 30 percent rating as of September 1, 2017. In March 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2020, the Board remanded the issue on appeal for additional development, to include obtaining the Veteran's outstanding VA treatment records, requesting his outstanding private treatment records, and affording him a contemporaneous VA examination. Thereafter, the AOJ obtained all outstanding VA treatment records, afforded the Veteran a new VA examination, and requested that he either provide his outstanding relevant private treatment records (namely for treatment from 2017 to the present) or complete and return a release form provided to him that would allow VA to request these records on his behalf. In response, the Veteran did not authorize VA to request his private treatment records, but rather submitted a March 2020 private orthopedic treatment, which was previously of record, and a May 2020 private pain clinic treatment record. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). Thus, the Board finds that there has been substantial compliance with the prior remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Additionally, while on remand, in a November 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded an increased rating of 60 percent for the Veteran's status post total right total knee replacement as of March 9, 2018. However, as 60 percent is not the maximum rating available for the Veteran's right knee disability, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The case now returns for further appellate review. Given the Veteran's assertion that he had to retire as a corrections officer due, in part, to his right knee disability at a January 2017 VA examination, the Board finds that a claim for a TDIU has been raised as part and parcel of increased rating claim on appeal. Thus, the Board has assumed jurisdiction over such claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Entitlement to a rating in excess of 30 percent prior to March 9, 2018, and in excess of 60 percent thereafter for status post total right total knee replacement, to include whether the reduction from 100 percent to 30 percent, effective September 1, 2017, was proper. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). By way of background, the Veteran was awarded service connection for right knee chondromalacia with degenerative joint disease with an initial 10 percent rating as of January 2013. In November 2016, he filed the instant claim for an increased rating for such disability. Based on evidence that he had recently undergone a total right knee replacement on July 19, 2016, the AOJ awarded a temporary total (100 percent) as of such date and a 30 percent rating as of September 1, 2017, pursuant to DC 5055, in the February 2017 rating decision on appeal. 38 C.F.R. § 4.71a. In a November 2020 rating decision, the AOJ awarded an increased rating of 60 percent as of March 9, 2018, for the Veteran's right knee disability. In this regard, DC 5055, which pertains to knee replacements, provides for a 100 percent rating for one year following the implantation of prosthesis (i.e., knee replacement surgery). After that period, a minimum rating of 30 percent is assigned. The next higher rating of a 60 percent is awarded for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Finally, for intermediate degrees of residual weakness, pain, or limitation of motion, warranting a rating greater than 30 percent, but less than 60 percent, the disability should be rated by analogy to DCs 5256, 5261, 5262. 38 C.F.R. § 4.71a. As to available ratings between 30 and 60 percent, per DC 5256, ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent rating. Under DC 5261, a 40 percent rating is assigned where extension is limited to 30 degrees and a 50 percent rating is assigned where such is limited to 45 degrees. Under DC 5262, nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating. As noted above, as of July 19, 2016, the AOJ awarded a 100 percent rating commensurate with the date of the Veteran's total right knee replacement surgery, and continued this rating until September 1, 2017, more than one after the Veteran's surgery. Given that DC 5055, which outlines the rating criteria for total knee replacements, allows for the assignment of a 100 percent rating for no longer than one year after such surgery, there is no legal basis for extending the Veteran's 100 percent rating beyond September 1, 2017. Further, where the DC for a particular disability provides for an initial 100 percent rating for a finite period of time (e.g., following a knee replacement), and then the rating returns to a level below 100 percent, the change in rating is not a reduction under 38 C.F.R. § 3.105(e). See Tatum v. Shinseki (Tatum I), 24 Vet. App. 139, 143 (2010). With regard to the rating period commencing on September 1, 2017, DC 5055 instructs that residual knee disabilities following this year-long temporary total rating should be evaluated as at least 30 percent disabling, but may be evaluated up to 60 percent disabling based on evidence of severe painful motion or weakness in the affected extremity. While the AOJ assigned an initial 30 percent rating effective as of September 1, 2017, and increased that rating to 60 percent as of March 9, 2018, the Board finds that a 60 percent rating is warranted as of September 1, 2017. In this regard, the Board finds that the Veteran's right knee symptomatology remained largely consistent from his January 2017 VA knee examination, at which time he was still in receipt of a 100 percent rating, to his March 2018 VA knee examination, which served as the basis for the AOJ's award of an increased 60 percent rating. Specifically, during both his January 2017 and March 2018 VA examinations, the Veteran reported experiencing significant right knee pain, largely unalleviated by his total right knee replacement surgery. He characterized his right knee pain as a constant 7 of 10 during his January 2017 examination, and reported experiencing flare ups of his right knee disability hat occur with "pretty much anything," to include walking, which cause a lot of "pain, swelling, weakness" and requires the use of a cane during his March 2018 VA examination. Further, the Veteran's VA treatment records between September 1, 2017, and March 9, 2018, are replete with his reports of experiencing significant right knee pain and related functional impairment, requiring his frequent use of opiate pain relievers, and the March 2018 and October 2020 VA examiners found that, based on similar descriptions of his symptomatology, the Veteran's status post total right knee replacement resulted in chronic residuals consisting of severe painful motion or weakness. Given that the AOJ concluded that the Veteran's reported symptomatology during his March 2018 VA examination warranted the assignment of a 60 percent rating, and given that the evidence of record suggests that the Veteran was experiencing the same symptoms during the period from September 1, 2017, to March 9, 2018, the Board resolves all doubt in his favor and finds that the assignment of an increased rating of 60 percent is warranted as of September 1, 2017. However, a 60 percent rating is the highest schedular rating available for knee impairments, per DC 5055 for knee prostheses, per DC 5003 for arthritis, or per DCs 5256-5263 for all other impairments of the knee and leg, and the Veteran's reported right knee symptoms of significant pain and functional impairment are specifically contemplated by the currently assigned rating under DC 5055, i.e., as such encompasses chronic residuals of a knee replacement, thereby failing to suggest the need to consider whether an extraschedular rating may be warranted. In reaching the foregoing determination, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran's favor, which has resulted in a partial award of an increased rating for his right knee disability. However, insofar as the Board has denied an even higher rating, the preponderance of the evidence is against such aspects of the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable and such increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to a TDIU. As noted in the Introduction, the Veteran reported that he had to retire as a corrections officer due, in part, to his right knee disability at the January 2017 VA examination. Specifically, he indicated that he was having difficulty doing his job with the prolonged standing/walking and running. Similarly, at the March 2018 VA examination, the Veteran reported that he was unable to ambulate with a cane and experienced weakness and pain in the lower extremities due to arthritis. Finally, at the October 2020 VA examination, the Veteran reported chronic pain in the knees with edema and decreased range of motion, which made it difficulty to flex or extend the knees, which, in turn, made it difficulty to climb stairs and ambulate. Additionally, standing or sitting for any prolonged period of time and getting up from a seated position were difficult, and he could not kneel or bend at the knee. Finally, the examiner noted that the Veteran needed assistance with chores around the house and he was unable to do yard work. Thus, the evidence of record has Consequently, on remand, the Veteran should be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and, thereafter, the AOJ should conduct any necessary development and adjudicate such claim in the first instance. The matter is REMANDED for the following action: The Veteran should b be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and, thereafter, the AOJ should conduct any necessary development and adjudicate such claim in the first instance. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Northcutt, 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.