Citation Nr: 22018567
Decision Date: 03/29/22	Archive Date: 03/29/22

DOCKET NO. 99-09 886
DATE: March 29, 2022

ORDER

Entitlement to a rating in excess of 20 percent for residuals of a shell fragment wound (SFW) of the right lung with retained fragments (right lung SFW) is denied.

Entitlement to a 30 percent rating for left knee residuals, SFW with ligament instability and traumatic arthritis (left knee instability), from February 5, 1998, to April 17, 2019, is granted.

Entitlement to a 60 percent rating for left knee total arthroplasty with residuals (left knee replacement, previously rated as left knee residuals, SFW with ligament instability and traumatic arthritis) from June 1, 2020, onward, is granted.

Entitlement to SMC under 38 U.S.C. § 1114(m) based on the loss of use of the lower legs, effective February 11, 1998, is granted.

Entitlement to SMC under 38 U.S.C. § 1114(p), effective June 19, 2006, is granted.

Entitlement to SMC under 38 U.S.C. § 1114(1) prior to August 31, 2017, is dismissed as moot.

 

FINDINGS OF FACT

1. It is not possible to distinguish the residuals of the Veteran's right lung SFW from any damage to his lungs, instead, because of his history of chronic smoking. 

2. For the entire period on appeal, his severe muscle injury to Muscle Group XXI has manifested in pain, discomfort on exertion, shortness of breath, fatigue, and weakness; however, pulmonary function tests (PFTs) have documented no worse than Forced Expiratory Volume in one second (FEV-1) of 90 to 100 percent predicted or a ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 90 to 100 percent.

3. From February 5, 1998, to April 17, 2019, his left knee instability was severe, requiring multiple assistive devices without symptom relief. 

4. From June 1, 2020, onward, his left knee replacement has manifested in chronic residuals consisting of severe painful motion and weakness.

5. Effective from February 10, 1998, the evidence is at least evenly balanced as concerning whether his service-connected lower extremity disabilities result in functional loss of use of both his lower legs at the knee level.

6. The award of SMC pursuant to 38 U.S.C. § 1114(m) effective from February 11, 1998, is a greater benefit than SMC under 38 U.S.C. § 1114(l).

CONCLUSIONS OF LAW

1. The criteria are not met for a disability rating in excess of 20 percent for the Veteran's right lung SFW. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.97, Diagnostic Codes (DCs) 6818-5321, 6844. 

2. The criteria are met for a disability rating of 30 percent, though no greater, for his left knee instability from February 5, 1998, to April 17, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257.

3. The criteria are met for a disability rating of 60 percent, though no greater, from June 1, 2020, for residuals of total left knee replacement. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DC 5055.

4. With reasonable doubt resolved in his favor, the criteria are met for SMC under 38 U.S.C. § 1114(m) based on loss of use of both legs at the knee level effective from February 11, 1998. 38 U.S.C. §§ 1114(m), 5107(b); 38 C.F.R. §§ 3.102, 3.350, 3.352.

5. With reasonable doubt resolved in his favor, the criteria are met for SMC under 38 U.S.C. § 1114(p) owing to SMC(m) and a 100 percent rating for a single service-connected disability, effective from June 19, 2006. 38 U.S.C. §§ 1114(m), (p), 5107(b); 38 C.F.R. §§ 3.102, 3.350, 3.352.

6. Entitlement to SMC under 1114(l) is moot effective from February 11, 1998. 38 U.S.C. §§ 1114(l), (m); 38 C.F.R. §§ 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1968 to October 1970. He received the Combat Infantryman Badge and Purple Heart Medal owing to numerous injuries sustained in combat. 

This appeal to the Board of Veterans' Appeals (Board) is from an October 1998 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). 

These claims were first remanded back to the RO (AOJ) in June 2001 and March 2005, the latter to schedule a hearing at the RO before a Member (Veterans Law Judge (VLJ)) of this Board. That hearing was in October 2010 before the undersigned VLJ. A transcript of that hearing is of record.

 

These claims also since, however, have been considered and again remanded back to the RO for still more development and consideration  in March 2011, September 2013, May 2017, and August 2020, most recently for VA medical examinations and opinions reassessing the severity of the left knee disability and right lung SFW residuals, with specific consideration of the Veteran's history of chronic smoking and its potential effect on his right lung. There since has been the required compliance  certainly the acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than "strict" or "exact" compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

The RO issued a November 2021 rating decision on remand that increased the left knee disability rating because of total knee replacement, imposing a "staged" rating of 100 percent as of April 17, 2019, and a lesser 30 percent rating more than one year later  as of June 1, 2020. See 38 C.F.R. § 4.71a, DC 5055. As the Veteran has not indicated that he is satisfied with those increases in his ratings (until those increases his rating for this disability was 20 percent), the appeal is not abrogated. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (holding that it is presumed a Veteran is seeking the maximum benefit allowed by law or regulation, so the claim remains in controversy, even if partially granted, when less than the maximum benefit available is awarded). The remaining claims also at issue were denied in a Supplemental Statement of the Case (SSOC) also issued in November 2021 and, therefore, also have been returned to this Board for appellate adjudication. 

 

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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.

When evaluating a disability's severity, it is essential to consider it in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation is established and a rating increase is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings, then separate ratings may be assigned for separate periods based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

If the disability more closely approximates criteria for a higher rating than a lower one, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3.  It is not expected that all cases will show all the criteria specified; however, expected findings will be sufficiently characteristic to identify the disease, the disability therefrom, and coordination of rating with impairment of function in all instances. 38 C.F.R. § 4.21. 

According to 38 C.F.R. § 3.400(o)(2), the effective date for an increased rating may be up to one year prior to the receipt date of the increased rating claim, provided the evidence reflects the disability worsened during that immediately preceding year. In other words, this entitlement to a higher rating must be factually ascertainable during that immediately preceding year. See Harper v. Brown, 10 Vet. App. 125 (1997); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability).

The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

Thus, according to Harper, 10 Vet. App. at 126, three possible effective dates may be assigned for a higher rating:

(1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (the date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (i.e., the date the increase is factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine: (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2).

1. Entitlement to a rating higher than 20 percent for right lung SFW residuals

This increased rating claim regarding the right lung SFW was last remanded in part for a new VA respiratory examination reassessing the severity of this service-connected disability, including in terms of ascertaining the extent of impairment owing to this disability versus the Veteran's 30-year history of cigarette smoking. 

The May 2021 VA examination on remand concluded that it is "not possible or feasible" to distinguish between the effects of the Veteran's combat injury and the effects of his smoking history. As such, this reasonable doubt must be resolved in his favor concerning this and, for all intents and purposes, all respiratory symptoms and impairment referable to his right lung considered as part and parcel of his service-connected right lung SFW. See Mittleider v. West, 11 Vet. App. 181 (1998).

The Veteran's right lung SFW is currently rated as 20-percent disabling under hyphenated DC 6818-5321. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. His condition was initially rated under DC 6818, a DC deleted from the Rating Schedule in a regulation update effective October 7, 1996. See 61 Fed. Reg. 46,720 (Sept. 5, 1996). Pursuant to that update, similar disabilities to the one at hand are generally rated under 38 C.F.R. § 4.97, DC 6844, evaluating post-surgical residuals pursuant to the General Rating Formula for Restrictive Lung Disease. 

According to Note (3) of DC 6844, gunshot wounds of the pleural cavity with bullet or missile retained in the lung with pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or lower chest expansion, shall be evaluated at a minimum 20-percent disabling. In such a case, involvement of Muscle Group XXI (DC 5321) will not be separately rated. 

Under DC 6844, a 10 percent rating is warranted for FEV-1 of 71- to 80-percent predicted value; or a FEV-1/FVC of 71 to 80 percent; or Diffusion Capacity of the Lung for Carbon Monoxide by Single Breath Method (DLCO (SB)) of 66- to 80-percent predicted. A 30 percent rating is assigned for FEV-1 of 56- to 70- percent predicted; or FEV-1/FVC of 56 to 70 percent; or DLCO (SB) 56- to 65-percent predicted. A 60 percent rating is assigned for FEV-1 of 40- to 55-percent predicted; or FEV-1/FVC of 40 to 55 percent; or DLCO (SB) of 40- to 55-percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardio-respiratory limit). A 100 percent rating is assigned for FEV-1 less than 40 percent of predicted value; or FEV-1/FVC less than 40 percent; or DLCO (SB) less than 40-percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); or cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), episode(s) of acute respiratory failure, or required outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6844. 

When evaluating based on PFTs, post-bronchodilator results are used for evaluating rating criteria, unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5). If there is a disparity between the results of different PFTs, so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is utilized. 38 C.F.R. § 4.96(d)(6).

The Veteran's right lung SFW is rated under DC 5321, Muscle Group XXI, for muscles used for respiration. Under DC 5321, a noncompensable (0 percent) rating is warranted for slight injury, a 10 percent rating is warranted for moderate injury, and a maximum schedular 20 percent rating is warranted for moderately severe or severe injury. 38 C.F.R. § 4.73, DC 5321. He accordingly already has the highest permissible schedular rating under this DC. 

Turning to the record, the first medical evidence of respiratory complaints appears in the report of a May 2002 VA examination, when the reported shortness of breath when excited or nervous. PFT on that date reflected 90 to 100 percent predicted outcomes at all pre- and post-bronchodilator FEV-1, FEV-1/FVC, and FVC responses, which are insufficient to warrant a rating greater than 20 percent under DC 6844. His July 2006 VA examination shows pain reported in his chest wall at the SFW site and shortness of breath with activity, particularly at 3,000 feet above sea level. He reported severe shortness of breath after walking approximately 10 feet and testified to the same during his October 2010 hearing. 

Conversely, the Veteran expressly denied respiratory symptoms in medical records from 2010 through December 2015 when providers repeatedly asked about respiration while assessing him pre-surgery and due to long-term prescribed opioid use. Later, records show albuterol and tiotropium prescriptions to control shortness of breath in July 2018, without acute complaints or incident. These medications appear on record to present. 

 

During his May 2021 VA respiratory examination on remand, the Veteran reported pain at his scar site, but no new shortness of breath, aggravated symptoms, or symptom progression. His post-bronchodilator FVC/FEV-1 result  designated by the examiner as the result most indicative of the Veteran's disability level  was 100 percent predicted. These readings result in a noncompensable rating according to DC 6844. However, as the disability in question involves retained fragments in the lung with discomfort on exertion, it still warrants a 20 percent disability rating pursuant to Note (3). Id.

In the November 2021 SSOC, the RO accordingly found no grounds to increase the Veteran's rating under either DC 5321 or 6844. The RO further determined that DC 5321 reflected the dominant disability, rather than DC 6844. 38 C.F.R. § 4.97.

Considering the entire record and the rating criteria under both DCs 5321 and 6844, the Board also finds increasing the Veteran's rating is not warranted. The Board has considered all the Veteran's statements, including those made to providers and under oath in hearing. He is competent to identify and observe the effect of his disability under the ordinary conditions of daily life. His right lung SFW manifests with symptoms particularly observable even by a layman, such as pain and shortness of breath. Accordingly, his lay testimony and statements concerning this are competent, but also credible since not contradicted by the other evidence in the file, including to some extent by the medical evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

Regardless, the General Rating Formula for Restrictive Lung Disease requires considering precise medical findings, including PFT and other diagnostic findings and objective data, not mere subjective lay opinion. See 38 C.F.R. § 4.100. The Rating Schedule shows a clear preference for the pre-bronchodilator PFT results, or otherwise for those results expressed to be considered the most reliable by the examiner. 38 C.F.R. § 4.96(d)(5), (6). In this case however, neither the pre- or post-bronchodilator results reflected measurements resulting in a higher rating than the 20 percent already assigned. As such, the highest schedular rating available to the Veteran under DC 6844 is the 20 percent under Note (3), equivalent to what is already assigned. As previously observed, the Rating Schedule prohibits assignment of separate ratings under DC 6844 and 5321, so an additional 20 percent under Note (3) is not for application. 

The Veteran's current 20 percent rating is the highest schedular rating available under DC 5321 and, as stated, the highest he can be awarded under DC 6844 as well. In exceptional cases, an extra-schedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Rating Schedule for that disability. 

Under DC 5321, in relevant part, a 20 percent rating for severe symptoms is warranted for deep penetrating wounds manifesting with symptoms such as fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement, presenting inability to keep up with work requirements at a level of severity greater than moderately severe. 38 C.F.R. § 4.56(d)(4). These criteria grossly correspond with the Veteran's right lung SFW injury and reported symptom manifestation, which focuses on pain more so than respiratory problems.

However, as alluded, the record does not indicate the Veteran's right lung SFW presents an exceptional disability picture, such as having caused periods of hospitalization, or interfering with his employment. As noted, the evidence tends to show the opposite, reflecting a right lung condition that has remained largely stable, albeit causing pain and shortness of breath on exertion, with symptoms controlled by medication. This finding does not imply that his right lung condition does not merit a rating for "severe" injury under DC 5321. Rather, it confirms that his right lung SFW does not conform to the exceptional disability picture contemplated by 38 C.F.R. § 3.321(b)(1). 

 

It also is important to note that VA amended its adjudication regulation pertaining to extra-schedular consideration of a service-connected disability in exceptional compensation cases. This rule clarifies that an extra-schedular evaluation is to be applied to an individual service-connected disability when the disability is so exceptional or unusual that it makes application of the regular Rating Schedule impractical. An extra-schedular evaluation may not be based, instead, on the "combined effect" of more than one service-connected disability. 82 Fed. Reg. 57830 (Dec. 8, 2017). In Thurlow v. Wilkie, 30 Vet. App. 231 (2018), the Court found that this amendment applied retroactively as it does not have an impermissible retroactive effect.

Nothing in the record credibly suggests the Veteran's service-connected right lung SFW causes occupational impairment above and beyond what is contemplated by the schedular rating assigned for his disability. See Van Hoose v. Brown, 4 Vet. App. 361, 63 (1993) (explaining that the disability rating, itself, is recognition that industrial capabilities are impaired). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. §§ 4.1, 4.15. This Veteran has not needed any hospitalization for his right lung SFW, certainly not frequently.

Considering that the entirety of the Veteran's symptoms as attributable to his service-connected disability, rather than to his smoking history, his symptoms still do not warrant a rating greater than 20 percent for his right lung SFW, either on a schedular or extra-schedular basis, whether evaluated under DC 5321 or 6844. Moreover, the evidence for versus against this claim is not in approximate (nearly equal) balance, so there is no reasonable doubt to resolve in his favor. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v.  Principi, 274 F.3d 1361 (Fed. Cir. 2001).

 

2. Entitlement to a 30 percent rating for left knee instability is granted from February 5, 1998, to April 17, 2019  

This left knee increased rating claim was filed on February 5, 1998, when the Veteran's left knee disability was rated as 20-percent disabling under hyphenated DC 5010-5257. DC 5010 articulates rating criteria for post-traumatic arthritis, while DC 5257 addresses knee instability. In a December 1999 rating decision, this disability was bifurcated, and the Veteran was awarded a separate 10 percent rating under DC 5010. His 20 percent rating under DC 5257 for ligament instability continued undisturbed. 

As alluded, the Veteran's left knee disability is now rated under DC 5055 due to a total left knee replacement on April 17, 2019. That rating also is on appeal and addressed later in this decision.

As applies to the Veteran's knee instability, however, the rating criteria for evaluating musculoskeletal disabilities were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). As February 7, 2021, is after his knee rating changed to DC 5055, the rating changes are inapplicable to his knee instability, and will not be discussed here. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (when an increased rating is warranted under revised criteria, the award may not be made effective before the effective date of the change unless specifically provided for by law).

Prior to February 2021, DC 5010 directed that post-traumatic arthritis be evaluated under criteria in DC 5003 as degenerative arthritis. According to DC 5003, degenerative arthritis established by x-ray findings was evaluated based on limited motion of the specific joint involved. Where limited motion resulted in a noncompensable rating under the appropriate DC, DC 5003 awarded a 10 percent rating for each major joint affected, objectively confirmed by findings such as swelling, muscle spasm, or evidence of painful motion. A 10 percent rating also applied for x-ray evidence showing involvement of two or more major joints or two or more minor joints. A 20 percent rating applied for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. But the ratings on this basis could not be combined with the ratings instead based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003. The knee was and is considered a major joint. 38 C.F.R. § 4.45.

DC 5003 as mentioned implicates limited knee motion, which in turn is evaluated by DCs 5260 (flexion) and 5261 (extension). Limited flexion warrants 10, 20, and 30 percent ratings when the limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, DC 5260. Limited extension warrants 10, 20, 30, 40, and 50 percent ratings when the limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. Id., at DC 5261. 

The Veteran's 20 percent rating, meaning apart from the arthritis with consequent limited motion, is owing to his left knee instability. VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). This "other" knee impairment, including recurrent subluxation or lateral instability, warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, DC 5257. The terms "slight," "moderate," and "severe" are not specifically defined, so the Board must evaluate all the evidence so that its decisions are "equitable and just." 38 C.F.R. §§ 4.2, 4.6. 

Ratings also may be assigned, including separately, when the knee disability affects the meniscus, with a 10 percent rating for removal of semilunar cartilage. (e.g., meniscectomy) and current residual symptoms, and a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint. 38 C.F.R. § 4.71a, DCs 5258, 5259 ("meniscal codes"). See also Lyles v. Shulkin, 29 Vet. App. 107 (2017).

Here, as a preliminary observation, the record consistently reflects that the Veteran is non-ambulatory. At all VA examinations, medical appointments, and personal appearances on record, he appeared using a VA-provided motorized wheelchair, which he has used since the 1980s. He uses a cane or walker at home. He also used a left knee brace prior to his knee replacement. 

 

During his August 1998 VA medical examination, he reported severe left knee pain that prevented standing and walking. The examiner noted objective evidence of reduced strength, pain, and moderate ligament laxity, but near-normal range of motion measurements. Later, the Veteran submitted January 1999 personal statements attesting to instability and severe pain, waking him from sleep and preventing walking, sitting, or standing for prolonged periods. 

His July 2006 VA medical examination recorded constant 10/10 pain, weakness, swelling, and instability in his left knee, triggered by movement, sitting, or standing. The examiner did not find objective evidence of instability and found near-normal range of motion, but still found the Veteran non-ambulatory due in part to knee pain and stiffness. 

At his October 2010 hearing, the Veteran testified that his left knee is painful, swells regularly, and buckles when he walks, requiring anti-inflammatories every other day. He used a wheelchair due to the combined effect of his hips, knees, and ankles. 

His November 2014 VA examination noted swelling, greater difficulties sleeping, and flares daily, aggravated by walking and bending, unrelieved by medication, expressing increased frequency and severity in symptoms. Among other things, the examiner found objective evidence of pain, reduced strength, locomotion disturbance, and anterior instability. April 2015 radiology reports showed left knee effusion with marked laxity and bone-on-bone misalignment of the joint. Radiology notes concluded the Veteran was "essentially (a) non-ambulator" due to these findings. In October 2015, he was forced to reschedule surgery because swelling in his knees and ankles prevented walking. 

His September 2017 VA examination found greater reduction in motion, with left knee flexion at 0 to 95 degrees and extension to 0 degrees, with pain on motion and weight-bearing. The examiner found objective evidence of significant functional loss. Additional contributing factors included daily flare ups, weakened movement, and disturbance of locomotion. The examiner noted marked interference with standing, reduced strength, and anterior instability. 

After review of the evidence, the Board finds that an initial 30 percent rating for left knee instability is warranted. The record reflects consistent medical and lay statements observing left knee buckling, instability, and weakness, causing noticeable gait and balance problems, and requiring constant use of a brace as well as a cane or wheelchair for mobility. Regarding his lay statements, the Veteran is competent to report what he feels or senses to be instability and giving out of his knee. In English v. Wilkie, 30 Vet. App. 347 (2018), the Court held that DC 5257 does not "speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that DC." The Court further held that "[t]he Board [cannot] categorically find objective medical evidence more probative than lay evidence with respect to [DC 5257] without supporting its conclusion with an adequate statement of reasons or bases." Id. Here, the lay evidence is generally in accord with the treatment record, despite inconsistent evidence of laxity at the VA knee examinations discussed. Resolving all reasonable doubt in the Veteran's favor, for the reasons articulated above, the Board finds an initial 30 percent rating warranted for severe left knee instability under DC 5257.

Although the Veteran's several VA examinations noted reduced range of motion, his flexion has been limited at worst to 95 degrees, and that measurement far exceeds even the 60-degree limitation required for the most minimum 0 percent rating under DC 5260. He therefore certainly does not have the necessary 45-degree limitation required for a 10 percent rating or 30-degree limitation required for a 20 percent rating, let alone one greater. His additional 10 percent rating was assigned because he has arthritis in this knee under DC 5010, absent sufficient limitation of motion to otherwise warrant this rating under DC 5260. This is true even accounting for his pain. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable, meaning 0-percent disabling, under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Id. 

Even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The Court has held that § 4.40 does not require a separate rating for pain, rather, provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997).

Further, the record does not support finding ankylosis or symptoms or impairment akin to it, even during a flare-up, which, in turn, could be considered the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). In making this finding, the Board is cognizant of the Veteran's reported immobility in October 2015. However, he explained it was due to swelling and pain in his lower extremities (both), so due to the combined effect of multiple disabilities and not his left knee alone. This, and his status as effectively non-ambulatory due to these multiple other service-connected disabilities, is addressed later in this decision as evidence of loss of use of his lower extremities. However, as addressing his left knee, specifically, even when considering additional functional loss due to pain or during flare-up, higher ratings are not warranted based on limited motion. Although his VA examinations were not completed during a flare-up, the treatment records and other relevant evidence  including lay evidence, did not show this more restricted ranges of motion warranting a finding of actual or functional ankylosis of the left knee. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (wherein the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans, themselves, when a flare-up is not observable at the time of examination or glean this information from other evidence of record).

Finally, the record does not reflect malunion of the tibia, meniscal injury, or symptomatic residuals of meniscectomy such as would justify the application of another DC to this disability or increase the rating on other grounds. Although there is evidence of effusion, there is no evidence of locking or other symptoms that might justify a separate rating for the left knee. In denying any additional or greater rating, at least on this basis, the Board finds the benefit of the doubt doctrine inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Considering the entire record in the light most favorable to the Veteran, the Board finds sufficient evidence of severe instability, evinced by his testimony, use of multiple assistive devices, and consistent buckling and balance problems despite those devices, to warrant a 30 percent rating under DC 5257 for the entire period on appeal until his knee replacement surgery on April 17, 2019. 

3. A higher 60 percent rating, status post left knee replacement, is granted from June 1, 2020, onward

Upon termination of his temporary 100 percent rating as of June 1, 2020, the Veteran asserts that his disability warrants a rating higher than the 30 percent rating that took effect as of that date. As alluded, rating criteria under DC 5055 changed as of February 7, 2021. DC 5055 applied to this disability before and after that date, so the Board will consider his claim under both the old criteria in effect prior to February 7, 2021, and new rating criteria now in effect. But, to reiterate, according to the holding in Kuzma a rating increase under the revised criteria can be no earlier than the effective date of the revised criteria.

Prior criteria provided a 100 percent rating for one year following implantation of the prosthesis. A 30 percent rating was the minimum rating assignable for prosthetic replacement of the knee joint. A 60 percent rating was warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DCs 5256, 5260, 5261, or 5262. 38 C.F.R. § 4.71a, DC 5055.

 

As of February 7, 2021, under the amended criteria, DC 5055 provides that a 100 percent rating is warranted for four months (rather than for one year) following implantation of the prosthesis. A 30 percent rating is the minimum rating assignable for prosthetic replacement of the knee joint. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are still to be rated by analogy to DCs 5256, 5260, 5261, or 5262. 38 C.F.R. § 4.71a, DC 5055.

The Veteran's left knee replacement with prosthesis was on April 17, 2019. He resultantly had a higher 100 percent rating from that date until June 1, 2020, so for more than the required year, when the rating was reduced to 30 percent consistent with the provisions of 38 C.F.R. §§ 4.68 and 4.71a, DC 5055, as in effect prior to February 2021. That was not a "rating reduction", per se, as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable DC involved contained a temporal element for that 100 percent rating).

Subsequent treatment records from August and September 2020 show the Veteran discontinued use of his knee brace, but notably still reported pain and weakness. His May 2021 VA examination, conducted more than two years after his knee replacement surgery, determined there still was reduced left knee strength at a level identical to what it was during his prior September 2017 VA examination, which also was prior to his knee replacement. He reported continued reduced left knee motion and pain on motion and weight bearing. Although there was no sign of instability, the examiner cited functional limitations when squatting, walking, standing, and using stairs, consistent with the Veteran's reports.

The record accordingly reflects continued severe painful motion and weakness a full two years after his knee replacement, so well after his initial periods of convalescence and recovery. So viewed, the evidence of record is at least in relative equipoise regarding whether a higher 60 percent rating under both the prior and revised regulations is warranted, and therefore this increase is granted from June 1, 2020, the date his 100 percent rating following replacement surgery ended. 38 C.F.R. § 4.71a, DC 5055. 

The Board also finds that no other DC provides grounds for any higher rating, and the evidence does not reflect such an exceptional or unusual a disability picture that the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of his service-connected disability to in turn warrant referring this claim for extra-schedular consideration under the special provisions of 38 C.F.R. § 3.321(b)(1). Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Rather, at most a 60 percent rating is warranted from June 1, 2020, onwards  but which, as mentioned, still is greater than the 30 percent rating the Veteran has had effectively since that date. The Board has considered all potentially applicable DCs in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

4. Entitlement to SMC under 38 U.S.C. § 1114(m) based on loss of use of the lower extremities effective February 11, 1998

The Veteran asserts that he is entitled to an effective date earlier than August 31, 2017, for his SMC awarded at the "l" rate for requiring regular aid and attendance (A&A). After reviewing the relevant evidence, the Board agrees and finds that he is entitled to the higher level of SMC at the "m" rate, and that entitlement is effective from February 11, 1998.

SMC is a "special" (i.e., higher) rate of monthly compensation, so a type of increased disability compensation. The effective date of an SMC award therefore is governed by 38 C.F.R. § 3.400(o)(2) and Harper, 10 Vet. App. 125, just as it is for a more traditional increased rating claim. 

VA received the Veteran's claim for SMC at the (k) rate  so not specifically for A&A, which is awarded at the (l) rate  on February 11, 1998. At the time, he was previously awarded service connection for residuals of SFWs involving a right leg fracture, left knee instability and arthritis, left ankle pain, right knee retained mortar fragment, left heel scars, left upper extremity pain, liver laceration, and posttraumatic stress disorder (PTSD), as well as several conditions ostensibly unrelated to SFWs, including hypertension. 

 

The RO provided the Veteran an August 1998 VA A&A examination and subsequently denied an award for SMC based on A&A, specifically, in the same October 1998 rating decision on appeal. As alluded, he has continuously appealed this claim ever since. The Board accordingly will consider February 11, 1998, to be the appropriate date of claim. 

The Veteran currently had a 100 percent combined disability rating and has continuously since August 1982, although regulation changes and variations in his disabilities have affected how the rating was distributed. He is also in receipt of three different SMCs: under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of his right foot, from October 17, 1970; under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.35(b) for regular A&A when not hospitalized, now from February 11, 1998; and under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(4), at the rate equal to subsection (m) due to entitlement to an independent 100 percent rating for PTSD from August 31, 2017.

The Veteran was previously in receipt of SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) owing to his housebound (HB) status from January 30, 1990 to August 30, 2017. 

Generally, SMC is authorized under certain circumstances, in addition to compensation for service-connected disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMCs are authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the "s" rate). SMC at the "k" and "r" rates is paid in addition to any other SMC rates, with certain monetary limits. 

SMC for A&A at the "l" rate is payable when a Veteran, due to service-connected disability, has suffered anatomical loss, or loss of use, of both feet; of one hand and one foot; is blind in both eyes; is permanently bedridden; or so helpless as to require regular A&A. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). 

 

SMC is payable at the "m" rate when, due to service-connected disabilities, the Veteran suffers anatomical loss or loss of use of both hands, or of both legs, or one arm and one leg with factors preventing natural elbow and knee action with prosthesis in place, or blindness in both eyes with only light perception. 38 U.S.C. § 1114(m); 38 C.F.R. § 3.350(c). 

After reviewing the evidence of record, the Board finds that it is at least in relative equipoise concerning whether the Veteran has lost use of his legs at the knee level, as defined in the governing regulation. 

The Veteran was awarded SMC at the "l" rate on August 31, 2017, the date when a VA examination determined that SFW residuals to his lower extremities, liver laceration, and bilateral knee traumatic arthritis rendered him unable to protect himself from the hazards and dangers of daily life, secondary to poor balance and requirement of a wheelchair to ambulate.

As alluded, the record shows the Veteran has complete right foot drop and was accordingly qualified for loss of use of that limb  and SMC at the "k" rate  from October 1970 as a matter of presumptive loss of use due to a paralyzed peroneal nerve. 38 C.F.R. §§ 3.350(a)(2)(i)(b); 4.63(b). Therefore, the remaining question is whether his right leg from his knee to his ankle, and also his left leg from his knee down, have equally lost effective function. See Tucker v. West, 11 Vet. App. 369, 373 (1998) (holding that the relevant inquiry is not whether amputation is warranted but whether the Veteran has any effective function remaining other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance); 38 C.F.R. §§ 3.350(a)(2) ("effective function" may include, for example, the ability to balance or propulse (push off the foot)).

Beginning at the right knee and moving downward, the Veteran carries two 30-percent ratings under Muscle Groups XII and XV for moderately severe injuries due to his in-service SFW event. His August 1998 VA examination established knee pain and instability preventing ambulation. He also carries a 40 percent rating for residuals of a through-and-through SFW to his right leg lower leg, fracturing the tibia and fibula and causing the referred-to complete paralysis of the peroneal nerve and loss of muscle mass at the injury site. His November 2014 VA examination confirmed ankylosis and muscle atrophy of his right ankle, preventing normal propulsion. As alluded, normal propulsion was not applicable regardless, due to his previously established right foot drop. 

Regarding the left knee, as previously discussed, the Veteran now carries a 30 percent rating for instability prior to replacement, and a 60 percent rating thereafter. His August 1998 VA examination noted left knee pain preventing standing; diminished left ankle motion with pain on weight bearing; and left heel pain on weight bearing  so, from that examination alone, the entire lower left leg was functionally unable to bear weight due to pain alone. His July 2006 VA left knee assessment found him non-ambulatory due to pain and weakness in that joint. A November 2014 VA ankle examination found his left ankle not usable for propulsion. Radiology conducted at various times on record consistently shows retained shrapnel in his left ankle and foot, with several of the largest pieces in his left foot plantar tissues. 

Considering these factors in addition to his right foot drop, the August 1998 examiner objectively confirmed the Veteran as non-ambulatory, and further unable to stand or bear weight for an extended period. He determined the Veteran to be HB and requiring A&A due to his service-connected injuries  so, SMC at the "l" rate was presumably warranted. However, SMC was denied despite this recommendation. 

The rest of the Veteran's record adds to or expands on these enumerated limitations, without acute aggravating events and with notable consistency. In January 1999, he filed a personal statement attesting that he cannot dress himself due in part to his lower extremity injuries, and he requires his wife to massage his legs to relieve his sharp pains before bed. In March 2003, he submitted a VA Form 21-2680, Examination for HB Status or Permanent Need for Regular A&A, from his private provider. This assessment reflected loss of major muscles in the left lower extremity, negatively impacting function, with additional pain from knees to hips bilaterally. At hearing in October 2010, he credibly testified to requiring assistance changing his braces, dressing, and managing his treatment. A different January 2011 VA Form 21-2680 confirmed he required assistance to use the toilet and getting dressed due to lower extremity disabilities. 

In sum, the evidence establishes that the Veteran's SFW has resulted in severely compromised knees due to service-connected disabilities, in addition to bilateral ankle and foot disabilities that  while not as obvious or dramatic as complete right foot drop due to a severed peroneal nerve  independently prevent function by way of weakness, pain from retained shrapnel, and reduced motion. 

As alluded, SMC at the "m" rate is greater than SMC at the "l" rate. The Board notes that, to the extent he already has established a need for regular A&A due to the same disabilities  limitations caused by his lower extremities  entitlement to a separate award of SMC based on such need may not be established as a matter of law. See 38 C.F.R. § 3.350(e)(3). In short, he cannot be awarded two different SMC entitlements due to the same disabilities.

Certainly, when giving him the benefit of the doubt, the weight of the competent and credible (therefore probative) medical evidence supports finding the Veteran's service-connected bilateral knee, ankle, and foot disabilities meet the requirements of 38 C.F.R. § 3.350(c)(2). He is entitled to the comparatively greater SMC under 38 U.S.C. § 1114(m), based on multiple service-connected disabilities indicating that he has loss of use of both legs for the entire period on appeal, so since February 11, 1998, subject to the laws and regulations governing the payment of retroactive compensation.  

5. Entitlement to SMC under 38 U.S.C. § 1114(p) effective June 19, 2006

As alluded, the Veteran already was awarded SMC under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(4), at the rate equal to subsection (m), due to entitlement to an independent 100 percent rating for PTSD. This was assigned as of August 31, 2017, the date on which his SMC at the (l) rate was originally awarded.

As this order has assigned SMC at the (m) rate, instead, the Veteran is still entitled to SMC at the (p) rate and 38 C.F.R. § 3.350(f)(4) but now at the rate equal to higher subsection (n)  due to entitlement to SMC at the (m) rate  combined with his additional, unrelated PTSD, independently ratable at 100 percent. This is effective the date on which the entitlement arose, so from June 1, 2006, the date on which his PTSD was awarded a 100 percent rating. See 38 U.S.C. § 1114(p); 38 C.F.R. §§ 3.350(f)(4); 3.400(o)(1). 

6. Entitlement to SMC under 38 U.S.C. § 1114(1) prior to August 31, 2017, is dismissed as moot 

Finally, given the grant of benefits described above, entitlement to SMC under 38 U.S.C. § 1114(l) is rendered moot and must be dismissed. In this regard, entitlement to SMC under 38 U.S.C. § 1114(l) is a lesser benefit than SMC pursuant to 38 U.S.C. § 1114(m). Thus, the award of SMC at the (m) rate renders the issue of entitlement to SMC at the (l) rate moot. Therefore, no additional benefit (monetary or otherwise) can be gained through an award of SMC under 38 U.S.C. § 1114(1), nor does any controversy remain.

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. Stearns, 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.