Citation Nr: 22017379
Decision Date: 03/24/22	Archive Date: 03/24/22

DOCKET NO. 12-08 248
DATE: March 24, 2022

ORDER

Entitlement to a disability rating in excess of 60 percent for left total knee replacement (exclusive of a period of temporary total evaluation) is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. For the period on appeal, the Veteran's residuals of a left knee replacement were manifested by severe chronic residuals of severe painful motion or weakness

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 60 percent for a left total knee replacement have not 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 5055.

2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from April 1955 to November 1957.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 and August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In April 2014, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record.

The Board previously remanded this claim in June 2014, November 2014, November 2016, and December 2017 for additional development. As the actions specified in the remand instructions have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

The Board notes that during the pendency of the appeal, the RO issued a December 2021 rating decision granting a 60 percent evaluation for a left total knee replacement, effective October 1, 2010. As this increase is a partial grant of the benefit sought, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law).

Duties to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015).

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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

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 criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Veteran's entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in all increased rating claims, when the factual findings show distinct time periods during which the Veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

By way of history, the Veteran underwent a left total knee arthroplasty on August 10, 2009. He was provided a 100 percent disability rating for one year following the implantation of his prosthesis from August 10, 2009 to September 30, 2010 under Diagnostic Code 5055. He was assigned a 60 percent disability rating from October 1, 2010. The period when the Veteran was assigned a 100 percent disability rating is excluded from consideration as he was in receipt of the highest schedular rating.

The Board notes that the schedular criteria for rating the knee have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. In these regulatory changes, Diagnostic Code 5055 reduced the duration of the temporary 100 percent rating following implantation of prosthesis from one year to four months and included resurfacing. Diagnostic Codes 5257 (instability) and 5262 (impairment of the tibia and fibula) were also amended. See 85 Fed. Reg. 76,453, 76,461 (November 30, 2020).

When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, in this case, it can only be applied in this matter from February 7, 2021, forward. The Board notes that while Diagnostic Codes 5257 and 5262 were amended, the evidence of record shows that the residuals of the Veteran's left total knee replacement did not manifest in instability or impairment of the tibia and fibula. Further, the Veteran did not undergo a knee replacement or resurfacing of the left knee after October 1, 2018. As such, the 100 percent rating under Diagnostic 5055 under the new criteria is not for application. Further, as noted above, the duration of the temporary 100 percent rating following implantation of prosthesis is outside the applicable window for the new criteria. As such, the Board concludes that the application of the amended rating criteria would not result in a higher disability rating for the Veteran's left total knee replacement from February 7, 2021 forward.

Under the old criteria, Diagnostic Code 5055 provides that a 100 percent rating will be assigned for one year following implantation of a prosthesis. After that, a minimum 30 percent rating is assigned with intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5260 (limitation of flexion of the knee), or 5262 (limitation of extension of the knee). A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity.

Under the new criteria, Diagnostic Code 5055 provides that a 100 percent rating will be assigned for four months following the implantation of a prosthesis or resurfacing. After that, for total replacement, a minimum 30 percent rating is assigned with intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5260 (limitation of flexion of the knee), or 5262 (limitation of extension of the knee). A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. After the 100 percent rating period, resurfacing is evaluated under Diagnostic Codes 5250 through 5255 with no minimal evaluation.

Under the old and new rating criteria, Diagnostic Code 5260, which contemplates limitation of leg flexion, provides for a 0 percent rating for flexion limited to 60 degrees; a 10 percent rating for flexion limited to 45 degrees; a 20 percent rating for flexion limited to 30 degrees; and a 30 percent rating for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under the old and new rating criteria, Diagnostic Code 5261, which contemplates limitation of leg extension, provides for a 0 percent rating for extension limited to 5 degrees; a 10 percent rating for extension limited to 10 degrees; a 20 percent rating for extension limited to 15 degrees; a 30 percent rating for extension limited to 20 degrees; a 40 percent rating for extension limited to 30 degrees; and a 50 percent rating for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005).

Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and 5263 also address ratings for knee disabilities. However, in this case, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), subluxation or instability (to include patellar) (Diagnostic Code 5257), meniscal conditions (Diagnostic Codes 5258 and 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263); thus, the Diagnostic Codes pertaining to such impairments are not applicable.

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Further, under 38 C.F.R. § 4.45, consideration must be given to weakened movement, premature or excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). Moreover, the intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis).

In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion.

When the evidence is evenly balanced or approximately so with regard to whether an increased rating is warranted, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. §5107; 38 C.F.R. §§3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). To deny a claim on its merits, the evidence must persuasively weigh against the claim. Id.) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

1. Entitlement to a disability rating in excess of 60 percent for left total knee replacement (exclusive of a period of temporary total evaluation)

Initially, the Board notes that the Veteran is in receipt of a 60 percent rating for his left knee arthroplasty from October 1, 2010. Pursuant to the rating criteria, no other higher or separate rating is warranted under any of the other diagnostic codes pertaining to the knee for this period. Diagnostic Codes 5256 to 5263 govern ratings of the knee and provide a maximum 60 percent rating for various knee symptoms; therefore, a rating in excess of 60 percent is not assignable under any other Diagnostic Code pertinent to rating a disability of the knee. See generally 38 C.F.R. §4.71a, Diagnostic Codes 5256 5263; see also 38 C.F.R. §4.68, Diagnostic Code 5164 (providing that the combined rating for disabilities of an extremity at the knee level shall not exceed the rating for the amputation at that elective level, were amputation to be performed, i.e., 60 percent). Additionally, as 60 percent is the maximum disability rating one can receive under the amputation rule, no higher disability rating is available and a discussion of ratings under other potentially applicable Diagnostic Codes is not warranted for this period.

As stated above, a 100 percent rating will be assigned for one year following the prosthetic replacement of a knee joint. Moreover, and again as stated above, a disability rating greater than 60 percent is not available for the residuals of the prosthetic replacement of a knee joint because such a rating would exceed the maximum 60 percent allowable under the "amputation rule." As such, the Veteran is entitled to a 60 percent disability rating, but no more, for his service-connected total left knee replacement from October 1, 2010.

In summary, the evidence persuasively weighs against the Veteran's claim for a disability rating in excess of 60 percent for left knee arthroplasty from October 1, 2010. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021).

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU)

The Veteran's claim for a TDIU was raised during the pendency of his appeal for an increased rating for a left knee disability, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran continues to assert that his service-connected disabilities prevent his from securing and following a substantially gainful occupation.

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. A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340(a)(1), 4.15.

TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363.

The phrase "unable to secure and follow a substantially gainful occupation" has been interpreted to consist of two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 7274 (2019). The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. at 73.

With respect to the noneconomic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required; and, (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 7374.

The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners' conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment.

In this case, the Veteran has a both a single service-connected disability ratable at 60 percent or more and a combined rating of 70 percent or higher and a single disability rated at least 40 percent disabling. 38 C.F.R. §§ 4.16(a), 4.25. As such, the threshold rating requirements for a TDIU are met. 38 C.F.R. § 4.16(a).

Turning to the relevant evidence of record, in December 2015 and October 2020, the VA sent the Veteran correspondence requesting that he complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Veteran has not completed and submitted a copy of the form to the VA.

The Board notes that the claims file contains little information in regard to the Veteran's occupational history. However, the evidence of record indicates that he did not finish high school and that he last worked as a welder. On examination in March 2011, the Veteran stated he retired "a bit early due to knee pains".

The Veteran underwent VA knee examinations in March 2011, June 2013, September 2014, June 2016, January 2017, January 2018, and December 2021 to assess the current severity of his left knee condition. The VA examiners observed that the Veteran's left knee disability certainly has a functional impact on the Veteran's ability to do things such as standing or sitting for extended periods and lift heavy weight, but consistently concluded that the Veteran's left knee disability did not prevent him from performing the duties required in sedentary employment.

Specifically, in March 2011, the Veteran described the functional impact of his left knee disability as limiting him from prolonged standing, prolonged walking, or prolonged sitting. 

In June 2013, the VA examiner observed that the Veteran had trouble with balance and that he experiences pain from sitting or standing for extended periods, concluding that the Veteran could work in predominantly sedentary job.

In September 2014, the VA examiner noted that the Veteran's left knee condition would significantly reduce the ability to squat, climb and descend stairs or carry items of greater than fifteen pounds while walking. However, he could function in a sedentary position.

In January 2017, the VA examiner stated that the Veteran should avoid stairs, heavy lifting, kneeling, squatting, crawling, standing, or walking for prolonged times without rest, but he could perform lighter activities or sedentary type work.

In January 2018, on examination, it was observed that the Veteran cannot sit, stand, or walk for long periods nor can he run, jump, squat or climb ladders due to his service-connected left knee condition.

In December 2021, the examiner described the functional impact of his left knee disability as making him unable to stand for prolonged periods. 

During the period in question, the Veteran underwent VA examinations for his other service-connected disabilities, including right knee arthritis and residuals of a dislocated right elbow. However, the VA examiners found that these disabilities did not impact the Veteran's ability to work, opining that while the service-connected shoulder condition hinders his ability to reach up frequently or perform repetitive motions with his right arm and his right knee arthritis prevents prolonged standing the conditions would not prevent the Veteran from performing sedentary work.

The Veteran's VA treatment records for the relevant period were also reviewed. The Board notes that the Veteran's treating clinicians did not suggest he is unemployable at any time.

The Board acknowledges that the January 2018 addendum opinion by a VA nurse practitioner is favorable to the Veteran's claim. The VA examiner noted that the Veteran had only ever worked as a welder and his multiple bilateral knee diagnoses and impairments make it "most illogical" to expect him to seek and maintain gainful employment as his osteoarthritis and instability of both knees make standing in any prolonged position untenable. She further stated that the Veteran takes medications that could impact his alertness. While the Board acknowledges that the Veteran appears to only have had one job following service and has a limited education, the Board finds that the Veteran has not presented sufficient evidence that his service-connected disabilities were so debilitating as to preclude all forms of employment during the relevant period. Further, as noted throughout this decision, although the Veteran's bilateral knee disabilities and other service-connected musculoskeletal conditions undoubtedly result in some impairment of the Veteran's ability to perform physically demanding work, this does not wholly preclude employment, as there are numerous sedentary jobs which involve limited or minimal physical labor and do not require advanced education.  The Board notes that none of the examiners or providers defined the term "sedentary." Based on context, however, it appears most likely that they used the term with its common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). The Board itself uses the term in this same sense.

Finally, the Board finds the nurse practitioner's statement about the potential impact of the Veteran's medications on his alertness to be too speculative and conclusory. As the examiner provides no explanation for why the noted symptoms would result in total occupational and social impairment, the Board finds the January 2018 opinion of minimal probative value. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (stating that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim). 

Based on the foregoing evidence of record, the Board finds that the evidence persuasively weighs against a finding that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation at any time during the period on appeal. The evidence does not reflect that the Veteran is rendered physically incapable of performing tasks required by work, whether exertional or non-exertional. Ray v. Wilkie, 31 Vet. App. 58, 7274 (2019).

Concerning the Veteran's mental abilities, his thought processes, thought content, speech, communication, orientation, behavior, and hygiene have consistently been noted to be normal throughout the period at issue. As such, there is no evidence that the Veteran's mental abilities are so impaired that he would be unable to perform general work activities. Id.

In making this determination, the Board acknowledges that the Veteran's service-connected disabilities certainly cause him some level of functional impairment. For example, his left knee disability limits prolonged sitting, requiring breaks during sedentary periods to stand and stretch, and lifting weight over fifteen pounds. However, a cumulative review of the Veteran's symptoms reported by the Veteran during the appeal period do not support a finding of total and permanent disability due to his left knee disability.

Furthermore, while the Veteran's other musculoskeletal conditions would likely limit prolonged sitting, requiring breaks during sedentary periods to stand and stretch, and lifting, there is no evidence to support a finding that this functional impairment otherwise renders him unable to secure or follow all forms of substantially gainful employment. 

In making this finding, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent that service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for his disabilities already compensate the Veteran for such impairment.

The Board also finds it significant that the Veteran responded to an October 2020 request from VA to provide further information needed to substantiate his claim for a TDIU, by stating that he would not be completing the TDIU form as he intended to maintain employment. Further supporting a finding that despite the Veteran's service connected disabilities, he is able to maintain substantially gainful employment. Moreover, the Court in Wood v. Derwinski stated that, "the duty to assist is not a one-way street." If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood, 1 Vet. App. 190 (1991).

Accordingly, the Board finds that the weight of the evidence is against finding that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful employment. As the weight of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for entitlement to a TDIU must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rosenthal, Ariana

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.