Citation Nr: 21031269 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-51 989 DATE: May 21, 2021 ORDER Entitlement to a rating in excess of 30 percent for residuals of a service-connected right knee replacement, for substitution benefit purposes, is denied. Entitlement to a compensable rating for service-connected bilateral hearing loss, for substitution benefit purposes, is denied. REMAND Entitlement to a rating in excess of 10 percent for a service-connected lumbar spine disability status post fusion from L1 to S1, for substitution benefit purposes, is remanded. FINDINGS OF FACT 1. During the appeal period prior to his death, the Veteran's residuals of his right knee replacement had not consisted of severe painful motion or weakness in the affected extremity. He also did not have ankylosis, functional ankylosis, compensable limitation of extension, or impairment of the tibia and fibula. 2. During the appeal period prior to his death, the available medical evidence of record did not show that the Veteran had diminished hearing acuity at a compensable level. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for residuals of a right knee replacement, for substitution benefit purposes, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055. 2. The criteria for a compensable rating for bilateral hearing loss, for substitution benefit purposes, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from December 1942 to February 1946. He died in October 2013. The Appellant is the Veteran's surviving spouse. The Board of Veterans' Appeals (Board) notes that the Appellant was appropriately recognized as the substitute-claimant in this case in the October 2018 Statement of the Case (SOC). 38 U.S.C. § 5121A. Accordingly, the Appellant has been substituted as the claimant for purposes of all claims that were pending on the date of the Veteran's death. The issues on appeal have been recharacterized on the title page to reflect such substitution. This matter comes before the Board on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a Board hearing before the undersigned in December 2020. A transcript of the proceeding is of record. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 12627 (1999). 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 or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board notes that, effective February 7, 2021, the applicable rating criteria for DC 5055 for knee replacement and DC 5262 for impairment of tibia and fibula were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The final rule did not specifically permit retroactivity of the changes. The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board will consider all applicable criteria in evaluating the Appellant's claims. Right Knee In this case, the Veteran was service-connected for a right knee replacement and assigned a 30 percent rating under DC 5055. The criteria of DC 5055 evaluate impairment arising from the prosthetic replacement of a knee joint. Prior to the February 7, 2021 regulatory revisions, under DC 5055, for one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to DCs 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). Under DC 5261 for limitation of leg extension, a noncompensable evaluation is assigned for extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. Under DC 5262 for impairment of the tibia and fibula, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. Following the February 7, 2021 regulatory revisions, under DC 5055 for knee resurfacing or replacement, for four months following the implantation of a knee prosthesis or resurfacing, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement with a prosthetic for a total knee replacement is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to DCs 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). A note the to the DC provides that at the conclusion of the 100 percent evaluation period, resurfacing should be evaluated under DCs 5256 through 5262; there is no minimum evaluation for resurfacing. Under the revised rating criteria for DC 5262, impairment of the tibia and fibula, a 40 percent rating is assigned for nonunion of the tibia and fibula, with loose motion, requiring a brace. Malunion of the tibia and fibula is to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. If there is medial tibial stress syndrome (MTSS) or shin splints, a noncompensable rating is assigned for treatment less than 12 consecutive months, for one or both lower extremities. A 10 percent rating is assigned when MTSS or shin splints require treatment for no less than 12 consecutive months, and are unresponsive to either shoe orthotics or other conservative treatment, for one or both lower extremities. A 20 percent rating is assigned when MTSS or shin splints require treatment for no less than 12 consecutive months, and are unresponsive to surgery and either shoe orthotics or other conservative treatment, for one lower extremity. Finally, a 30 percent rating is assigned when MTSS or shin splints require treatment for no less than 12 consecutive months, and are unresponsive to surgery and either shoe orthotics or other conservative treatment, for both lower extremities. The normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. VA regulations also instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Appellant is not entitled to an increased rating for residuals of the Veteran's service-connected right knee replacement. In this regard, the Board notes that the AOJ was unable to obtain a VA examination before the Veteran's death to assess his current disability at the time. A review of the Veteran's treatment records from the period on appeal also do not show any evidence of the Veteran having chronic residuals of his knee replacement consisting of severe painful motion or weakness. In a July 2013 statement, the Veteran indicated that in July 2012, while stepping down two steps, his foot did not clear the bottom step and he fell forward, landing full length on his floor. He indicated that the fall led to nerve injuries in his right and left legs rendering him unable to walk. The Appellant also submitted a statement in July 2013 where she indicated that following the Veteran's August 1983 knee replacement, the Veteran could walk and his pain was lessened, however, he did not have full range of motion of his knee and could only bend his knee part way. During the December 2020 Board hearing, the Appellant reported that the Veteran's knees gave away in 2012 which caused him to fall and have to be hospitalized. Based on the foregoing, the evidence does not show that the Veteran had chronic residuals of his knee replacement consisting of severe painful motion and weakness. The Board has considered the lay statements from the Veteran and the Appellant regarding the Veteran's limited range of motion and instability. While the Veteran and the Appellant were competent to describe a reduced range of motion observed in the right knee, they are not competent to provide specific range of motion findings that are warranted for a separate rating under DC 5261 for limitation of leg extension. In addition, while the Appellant did indicate during the Board hearing that the Veteran's right knee weakness led to his fall in 2012, in the Veteran's own July 2013 statement, he attributed his fall to his foot not clearing the steps and, as discussed below, the Veteran had neurologic impairment of the lower extremities. The Veteran's statement is afforded greater probative weight because it involves an incident which he had personal knowledge of, rather than a secondhand account from the Appellant, which was offered years after the incident. In addition, in her July 2013 statement, the Appellant indicated that the Veteran's knee replacement surgery had lessened his pain. Thus, the Board finds that a 60 percent rating is not warranted under Diagnostic Code 5055. The Board has also considered whether an increased evaluation is warranted on the basis of intermediate degrees of residual weakness, pain, or limitation of motion under Diagnostic Codes 5256, 5261, or 5262. As discussed above, the record does not contain any range of motion findings that document limitation of extension such that a higher rating under DC 5261 would be warranted. The record also does not contain evidence that the Veteran had ankylosis of the right knee to warrant an increased evaluation under DC 5256 or any impairment of the tibia or fibula that would warrant an increased evaluation under DC 5262. The Board has also considered whether the Veteran would be entitled to a higher rating under the revised rating criteria for DC 5262, however, there is no evidence of any MTSS or shin splints. Thus, a higher rating under the revised criteria would not be warranted. Based on the foregoing, the Board concludes that an increased rating is not warranted for residuals of the Veteran's service-connected right knee replacement on the basis of substitution. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). Bilateral Hearing Loss Prior to his death, the Veteran was assigned a noncompensable rating for his bilateral hearing loss under DC 6100. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral for hearing impairment from Table VI or Table VIa, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Appellant is not entitled to a compensable rating for the Veteran's service-connected bilateral hearing loss. In this regard, the Board notes that the AOJ was unable to obtain a VA examination before the Veteran's death to assess his current disability at the time. In a July 2013 statement, the Veteran reported that he was completely reliant on his hearing aids, and that he had difficulty hearing his wife. He indicated that without his hearing aids, he could only hear loud noises. As discussed above, since the Veteran was not examined prior to his death, the Board must evaluate the Veteran's claim for an increased rating based on the evidence already of record, which consists of the Veteran's July 2013 statement as well as VA clinic records which discuss the Veteran's inability to communicate with his wife. This statement fails to support a compensable rating for bilateral hearing loss as it does not contain any audiometric findings. While the Veteran had reported a decrease in his hearing acuity, he is not competent to determine the current severity of his hearing loss as the evaluation of hearing loss disability is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. While the Veteran's lay statement did not contain audiometric findings, the Board has considered his assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. As such, an increased evaluation is not warranted. See also Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure). REMAND As noted above, the applicable rating criteria for the DCs pertaining to lumbar spine were also revised and consist of changes to DC 5242 for degenerative arthritis and DC 5243 for Intervertebral Disc Syndrome (IVDS). The new criteria of DC 5243 defines IVDS to exist when there is disc herniation with compression and/or irritation of the adjacent nerve root. As addressed below, the Veteran has a history of lumbar fusion which is service-connected - with radiculopathy of the lower extremities identified in the record. As such, the Board finds the IVDS criteria apply. Disabilities of the spine are evaluated under the General Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71(a). Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is only warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71(a), Note (1). Range of thoracolumbar spine motion is pictorially represented in Plate V at 38 C.F.R. § 4.71a. Historically, the Veteran had a history of surgery in 2005 involving decompressive lumbar laminectomy with partial facetectomies and foraminotomies from L1-L2 to L5-S1, posterolateral arthrodesis from L1-L2 to L5-S1, instrumentation from L1-L2 to L5-S1, and a right posterior iliac crest bone graft harvest. He subsequently underwent placement of a dorsal column stimulator. An evaluation in 2009 noted a history of falling incidents with left leg weakness. Examination was only significant for 4/5 strength in the right extensor. The examiner provided an assessment of status post decompression instrumented posterior final fusion from L1 to S1 with evidence of thoracic myelopathy and spinal cord compression. Radiographic studies noted some scoliosis within the low thoracic region with convexity to the right. A May 2012 evaluation included the Veteran's report of significant lower back discomfort with difficulty ambulating with his legs giving way. He particularly reported subacute pain down the lateral aspect of the right leg, primarily to the knee. Electromyography (EMG) was interpreted as showing possible component of peripheral neuropathy, subacute right L5 radiculopathy, chronic S1 radicular picture bilaterally with significant replacement of muscle tissue by connective tissue, and significantly diminished insertional activity in the left quadriceps presumed due to left L4 radiculopathy. In a July 2012 VA treatment record, the Veteran reported that he had chronic low back pain, which worsened when he bent over. A November 2012 VA clinic record noted that the Veteran was essentially non-ambulatory with difficulty walking from his bathroom door to toilet with a walker. Examination was significant for overall 4/5 strength with limited endurance. He was prescribed a power chair. He denied incontinence of urine and stool in November and December 2012. He entered hospice care in May 2013. The Veteran filed a claim for an increased rating in July 2013. At that time, the Veteran reported that after his back surgery in 2005, his physical stamina began to go downhill. He described obtaining no relief of pain and walking. He reported that he was provided with a scooter to help him get around. He had a falling incident in 2012 where his foot did not clear the bottom step. He subsequently lost his ability to control and use his left leg, and he described his right leg as useless. He reported that his legs could not bear his weight with his knees and legs collapsing. In a July 2013 statement, the Appellant indicated that the Veteran's back surgery had not been successful and that his ability to stand had declined. She also indicated that the Veteran's legs could not hold him up, and that his spine was completely out of line. Both the Veteran and the Appellant noted that the Veteran experienced bowel and urinary incontinence. A VA clinic record in August 2013 noted that the Veteran only had 10% cardiac function and was incontinent of stool. He was completely bed bound, incontinent of stool and bladder. The AOJ was unable to obtain a VA examination before the Veteran's death to assess his current disability at the time. During the December 2020 Board hearing, the Appellant reported that the Veteran had been bedridden prior to his death. When asked about why he was bedridden, the Appellant indicated that it was due to a heart disability. As noted above, an EMG conducted just prior to the beginning of the appeal period reflected subacute right L5 radiculopathy, chronic S1 radicular picture bilaterally with significant replacement of muscle tissue by connective tissue, and significantly diminished insertional activity in the left quadriceps presumed due to left L4 radiculopathy. The Board requires medical opinion which, to the extent possible, identifies the nerve group(s) were involved. Accordingly, this matter is REMANDED for the following: 1. Assist the Appellant in obtaining records regarding the Veteran's cardiac functioning since 2013 which may be relevant to determine the effect on his stamina and leg functioning. 2. Forward the claims folder to an appropriate examiner who is requested to review the following: the history of surgery in 2005 involving decompressive lumbar laminectomy with partial facetectomies and foraminotomies from L1-L2 to L5-S1, posterolateral arthrodesis from L1-L2 to L5-S1, instrumentation from L1-L2 to L5-S1, and a right posterior iliac crest bone graft harvest with subsequent placement of a dorsal column stimulator; a 2009 private examination noting a history of falling incidents with left leg weakness, a finding of 4/5 strength in the right extensor, and assessment of status post decompression instrumented posterior final fusion from L1 to S1 with evidence of thoracic myelopathy and spinal cord compression; the May 2012 evaluation noting subacute pain down the lateral aspect of the right leg, primarily to the knee with EMG findings of subacute right L5 radiculopathy, chronic S1 radicular picture bilaterally with significant replacement of muscle tissue by connective tissue, and significantly diminished insertional activity in the left quadriceps presumed due to left L4 radiculopathy; and a November 2012 VA clinic record noting that the Veteran was essentially non-ambulatory with difficulty walking from his bathroom door to toilet with a walker along with a history of limited cardiac functioning. The examiner is requested to identify from this evidence which nerve roots (sciatic, external popliteal nerve (common peroneal), musculocutaneous nerve (superficial nerve), anterior tibial nerve (deep peroneal), internal popliteal nerve (tibial), posterior tibial nerve, anterior crural nerve (femoral), internal saphenous nerve, obturator nerve and/or external cutaneous nerve of thigh). The examiner should also provide opinion, to the extent medically possible, whether the Veteran's loss of use of his right and/or left leg was attributable to his lumbar spine disability status post fusion from L1 to S1. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Saikh, 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.