Citation Nr: 22017158 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 09-30 895 DATE: March 24, 2022 ORDER A 60 percent rating for left total knee replacement from March 1, 2016 to November 19, 2019 is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, from March 1, 2016 to November 19, 2019 his left total knee replacement more nearly approximated chronic residuals to include severe painful motion. CONCLUSION OF LAW From March 1, 2016 to November 19, 2019, the criteria for a rating of 60 percent for left total knee replacement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.7, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1974 to August 1994. This matter has a lengthy procedural history and comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board denied service connection for a left shoulder/arm disability; denied a rating in excess of 30 percent for the period from March 1, 2016 to November 19, 2019; denied a rating in excess of 60 percent from November 20, 2019, for service-connected left total knee replacement; and remanded entitlement to TDIU. In a January 2021 rating decision, a TDIU was granted from November 20, 2019. A June 2021 Board decision denied a TDIU prior to November 20, 2019; which was not appealed and became final. Thus, this issue is no longer before the Board. The Veteran appealed the issue of entitlement to a rating in excess of 30 percent for the period from March 1, 2016 to November 19, 2019 to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 joint motion for partial remand, the Court vacated and remanded the part of the Board decision that denied a rating in excess of 30 percent from March 1, 2016 to November 19, 2019. That remaining issue is now returned to the Board for adjudication. Entitlement to a rating higher than 30 percent, from March 1, 2016 to November 19, 2019, for left total knee replacement. The Veteran's representative contends that the Veteran's August 24, 2016 notice of disagreement (NOD) indicates that his knee was causing more impairment than contemplated by a 30 percent rating. See Appellate Brief (January 2022). The Veteran contends that a 60 percent rating is warranted prior to November 19, 2019 because his knee conditions existed at that time. See NOD (August 2016). The Board resolves reasonable doubt in favor of the Veteran and concludes that his disability has been manifested by the symptoms associated with a 60 percent rating from March 1, 2016. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In this case, the Veteran's left knee disability ratings were consolidated and rated under Diagnostic Code 5055, as of January 6, 2015, following a left total knee arthroplasty (replacement). A temporary 100 percent rating was assigned from January 6, 2015 to March 1, 2016 following implantation of prosthesis, with a 30 percent rating assigned thereafter. The Board notes that 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). As the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that amendment, and the relevant period at issue predates the amendment, the Board will only consider and discuss the rating criteria prior to the February 7, 2021 amendment. Prior to the February 7, 2021 amendment, Diagnostic Code (DC) 5055 provided for a 100 percent rating for 1 year following implantation of prosthesis. After one year, a 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity, and a 30 percent rating is assigned for minimum residuals. Turning to the evidence, VA treatment records from December 2018 show that the Veteran was prescribed hydrocodone for pain through his private clinician. A November 2019 report of VA examination shows that the Veteran reported daily flare-ups of moderate to severe pain that lasted for hours. He stated that his knee would lock up at times and "do a lot of popping." He also reported that his knee would give out at times and feel unstable. The examiner noted pain on movement. The examiner noted that the Veteran had chronic residuals consisting of severe painful motion or weakness. The Board has considered the evidence showing that pain medications were prescribed following the January 2015 surgery and prior to the November 2019 VA examination. The Court has held that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). The rating criteria for DC 5055 do not contemplate the effects of medication on knee pain and so the Board must consider the Veteran's symptoms without the benefits of pain-relieving medication. The Board finds that, after discounting the ameliorative effects of medications used for treatment and resolving reasonable doubt in favor of the Veteran, the evidence supports the assignment of a 60 percent rating from March 1, 2016. The Board acknowledges that the evidence between March 1, 2016 (the date that the temporary 100 percent rating ended) and November 20, 2019 (the date of the post-surgery VA examination) is sparse; however, such evidence shows that the Veteran was prescribed pain medication and still exhibited painful residuals. Moreover, there is no indication that the Veteran's knee pain, which was noted as severe during the November 2019 VA examination, was not present prior to that date. As the evidence shows painful residuals despite the use of prescription pain medication, and after discounting the ameliorative effects of such medication used for treatment, the Board finds that a 60 percent rating is warranted from March 1, 2016. Therefore, resolving reasonable doubt in favor of the Veteran, the evidence supports finding that the Veteran's left total knee replacement residuals more nearly approximate the symptoms associated with a 60 percent rating from March 1, 2016 to November 19, 2019, which is the maximum rating available under DC 5055 for the period more than one year after the replacement procedure. Accordingly, the claim of entitlement to a 60 percent rating for left total knee replacement from March 1, 2016 is granted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board notes that under the amputation rule, the maximum rating for the Veteran's lower extremity for the knee and below is 60 percent; thus, the Veteran is in receipt of the highest schedular rating available. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, Associate 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.