C&p Results Question

[cooter]

i was reading a part of my C&P results under "Functional Loss" re; my right total knee replacement claim. The examiner checked positive for each function loss, which I believe were 14 different ones. Then I ran across this in the 38 CFR 4.40...Functional Loss. My Question is, concerning the last underlined sentence. would I fall under this? would this be considered as unemployable?

The

functional loss may be due to absence

of part, or all, of the necessary bones,

joints and muscles, or associated structures,

or to deformity, adhesions, defective

innervation, or other pathology,

or it may be due to pain, supported

by adequate pathology and evidenced

by the visible behavior of the

claimant undertaking the motion.

Weakness is as important as limitation

of motion, and a part which becomes

painful on use must be regarded as seriously

disabled.

Coot

[Teac]

i was reading a part of my C&P results under "Functional Loss" re; my right total knee replacement claim. The examiner checked positive for each function loss, which I believe were 14 different ones. Then I ran across this in the 38 CFR 4.40...Functional Loss. My Question is, concerning the last underlined sentence. would I fall under this? would this be considered as unemployable?

The

functional loss may be due to absence

of part, or all, of the necessary bones,

joints and muscles, or associated structures,

or to deformity, adhesions, defective

innervation, or other pathology,

or it may be due to pain, supported

by adequate pathology and evidenced

by the visible behavior of the

claimant undertaking the motion.

Weakness is as important as limitation

of motion, and a part which becomes

painful on use must be regarded as seriously

disabled.

Coot

I don't think it would be considered as the only reason for TDIU, simply because many people can and do work even without any limbs.

But the underlined statement is interesting, especially since I have two seperating 10% rating on my right knee for instability and limitation of motion. And every time I complain about the pain I am in, the doctors give me another jar of motrin....if it is to be considered as seriously disabled then why doesn't the va award higher ratings, it seems to me that this is a conterdiction.

[carlie]

i was reading a part of my C&P results under "Functional Loss" re; my right total knee replacement claim. The examiner checked positive for each function loss, which I believe were 14 different ones. Then I ran across this in the 38 CFR 4.40...Functional Loss. My Question is, concerning the last underlined sentence. would I fall under this? would this be considered as unemployable?

The

functional loss may be due to absence

of part, or all, of the necessary bones,

joints and muscles, or associated structures,

or to deformity, adhesions, defective

innervation, or other pathology,

or it may be due to pain, supported

by adequate pathology and evidenced

by the visible behavior of the

claimant undertaking the motion.

Weakness is as important as limitation

of motion, and a part which becomes

painful on use must be regarded as seriously

disabled.

Coot

Oh Mr Coot -

Citation Nr: 1121094

Decision Date: 05/31/11 Archive Date: 06/06/11

DOCKET NO. 09-07 014 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUES

1. Entitlement to a disability rating in excess of 20 percent for a left knee disability, prior to April 20, 2009, to include entitlement to a rating in excess of 10 percent prior to January 22, 2008.

2. Entitlement to a disability rating in excess of 60 percent for a left knee disability, as of June 1, 2010.

3. Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by: Tennessee Department of Veterans' Affairs

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

J. Connolly, Counsel

INTRODUCTION

The Veteran had active service from September 1977 to September 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs Regional Office (RO) in Huntington, West Virginia.

The Veteran was afforded a Video Conference Hearing before the undersigned Acting Veterans Law Judge in May 2010. A written transcript of this hearing has been prepared and incorporated into the evidence of record.

In July 2010, the Board remanded this case.

In a subsequent January 2011 rating decision, the RO increased the disability rating for left knee disability to 20 percent prior to April 20, 2009, and to 60 percent from June 1, 2010, following a period of a temporary total rating from April 20, 2009 based on surgical or other treatment necessitating convalescence.

FINDINGS OF FACT

1. Prior to April 20, 2009, the Veteran's left knee disability was productive of painful and limited flexion and extension, although not to the functional equivalent of flexion limited to 30 degrees and extension limited to 15 degrees; his symptoms were also consistent with moderate lateral instability.

2. As of June 10, 2010, the Veteran's left knee status post total knee replacement has resulted in chronic residuals consisting of severe painful motion in the left knee, manifested by flexion to 45 degrees with pain, pain with repetitive use, and constant daily pain.

3. Prior to April 20, 2009, the Veteran did not meet the schedular criteria for a TDIU and his service-connected disabilities did not preclude him from securing or following a substantially gainful occupation.

4. As of June 1, 2010, the Veteran meets the schedular criteria for entitlement to a TDIU and his service-connected disabilities preclude him from securing or following a substantially gainful occupation.

CONCLUSIONS OF LAW

1. Prior to April 20, 2009, the criteria for a separate 20 percent rating based on lateral instability, a separate 10 percent rating for limitation of flexion, and a separate 10 percent rating for limitation of extension of the left knee are met, effective from the date of claim of December 18, 2007. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5257, 5260, 5261 (2010).

2. From June 1, 2010, the criteria for a rating in excess of 60 percent for left knee disability, status post left total knee replacement, are not met. 38 U.S.C.A. § 1155, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5055 (2010).

3. Prior to April 20, 2009, the criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 20010; 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2010).

4. From June 1, 2010, the criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VCAA letters dated in December 2007, March 2008, and July 2010, fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was aware that it was ultimately the Veteran's responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the Veteran to provide any relevant evidence in the Veteran's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).

The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal. In this regard, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). The VCAA notices notified the Veteran that that a disability rating and an effective date for the award of benefits will be assigned in compliance with Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by the record. These examinations are adequate as the examiners reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the examinations in this case are adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326.

In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).

Rating

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.

However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims ("the Court") found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). However, in that regard, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996).

The provisions of 38 C.F.R. § 4.40 state that a disability affecting 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 also 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. See 38 C.F.R. § 4.40.

The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Historically, the Veteran was originally granted service connection for a left knee disability in a July 1982 rating decision. A 10 percent disability rating was assigned under Diagnostic Code 5257, effective as of May 19, 1982. The Veteran's disability rating was subsequently reduced to noncompensable in an August 1984 rating decision, effective as of November 1, 1984. However, the disability rating was again increased to 10 percent in a November 1989 rating decision, effective as of May 27, 1989.

For historical purposes, the Veteran was originally granted service connection for a left knee disability in a July 1982 rating decision. A 10 percent disability rating was assigned under Diagnostic Code 5257, effective as of May 19, 1982. The Veteran's disability rating was subsequently reduced to zero percent in an August 1984 rating decision, effective as of November 1, 1984. However, the disability rating was again increased to 10 percent in a November 1989 rating decision, effective as of May 27, 1989.

VA received the Veteran's most recent claim for an increased disability rating on December 18, 2007. This claim was denied by the RO in a June 2008 rating decision, which the Veteran appealed to the Board in February 2009. In a May 2009 rating decision, the RO assigned a temporary evaluation of 100 percent under Diagnostic Code 5055, effective as of April 20, 2009. A 30 percent evaluation was indicated as of June 1, 2010. In a subsequent January 2011 rating decision, the RO increased the disability rating for left knee disability to 20 percent prior to April 20, 2009 (effective January 22, 2008), and to 60 percent from June 1, 2010, following the period of a temporary total rating from April 20, 2009 based on surgical or other treatment necessitating convalescence.

In conjunction with the current claim, the Veteran was afforded a VA examination on January 22, 2008. At that time, the Veteran reported having left knee pain that he rated as 8-9 on a scale of 1-10 with 10 being worse. It was noted to be severe on a constant basis, rather than flare-ups. He used a brace at times, but no cane. He had undergone multiple surgeries in the past. He did not report dislocation or recurrent subluxation. He was not currently working. He had trouble ascending and descending stairs. He was dominant on his right side. Physical examination revealed that there was some swelling on the posterior aspect of the patella. There was also medial joint line tenderness. There was no warmth. The Veteran was able to fully extend the knee to zero degrees, but could only flex to 108 degrees with pain at the end range of motion. He had no instability to varus and valgus stress. Drawer and McMurray tests were negative. There was some clicking and crepitance noted in the medial aspect of the left knee. He had an antalgic gait. DeLuca factors were noted to be negative. Imaging revealed degenerative joint disease of the left knee. The diagnosis was osteoarthritis of the left knee.

In March 2008, the Veteran was afforded another VA examination. An examination of the knee was not conducted, but it was noted that the Veteran had fallen and fractured his left radius when his left knee gave out.

Thereafter, in June 2008, the Veteran was seen first in the emergency room and then by VA in the orthopedic clinic with an acute exacerbation of left knee pain. He related that he could not climb or descend stairs. He had difficulty walking and could ambulate 100 yards. He indicated that two weeks before, his left leg gave out and he fell. He had experienced increased pain since that time and had experienced problems with his sleep. Range of motion testing revealed motion from 10 degrees of extension to 120 degrees of flexion. There was pain medially with varus and valgus stress testing. It was stable to anterolateral, medial, and posterior ligament testing. He had a healed anteromedial incision. He had 2+ edema and moderate effusion. The knee was aspirated and injected with cortisone. A few days later, the left knee extension had improved to 5 degrees. He was given a cortisone injection.

On April 20, 2009, the Veteran underwent a total left knee replacement.

Post-surgery, a VA examination was conducted in August 2010. The Veteran indicated that he had current symptoms of pain, stiffness, weakness, decreased speed of the left knee joint, swelling, and tenderness. He related that the flare-ups were severe, occurred weekly, and lasted for hours. Prolonged lying on the bed, walking, and flexing made it worse. The Veteran used moist heat for relief. He was able to stand 15-30 minutes. Physical examination revealed that the Veteran had an antalgic gait. He had tenderness of the left knee as well as pain at rest. He had crepitation, clicks or snaps, grinding, and instability which was anterior and posterior and was moderate in degree. There was meniscus abnormality with locking and effusion, but no dislocation. The meniscus had been removed. The Veteran was able to flex the left knee to 60 degrees and extension was limited by 20 degrees. There was also objective evidence of pain following repetitive motion and additional limitation of motion after repetitive testing. Range of motion reduced to 45 degrees on flexion. X-rays revealed status post total knee arthroplasty with no evidence of periprosthetic fracture or loosening, and equivocal small joint effusion. It was noted that he Veteran was unemployed and not retired. He had been unemployed 2-5 years due to his left knee disability. With regard to activities, there was moderate impairment for chores, shopping, traveling, bathing, dressing, and driving. The Veteran was unable to exercise or participate in sports. The examiner opined that the Veteran had moderate to severe functional impairment of his left knee which would affect any job requiring its use. He also had residuals of a radial fracture which would have minimal effects on the use of his left elbow and forearm. The examiner indicated that only a sedentary job could match his current capabilities.

Symptomatic removal of the semilunar cartilage warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. A dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. See VAOPGCPREC 9-98 (Aug. 14, 1998).

Arthritis due to trauma, confirmed by x-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71(a), Diagnostic Code 5010. Under Diagnostic Code 5003, degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.

Diagnostic Code 5260 provides for a non-compensable evaluation where flexion is limited to 60 degrees; a 10 percent evaluation where flexion is limited to 45 degrees; a 20 percent evaluation where flexion is limited to 30 degrees; and 30 percent evaluation where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, a non-compensable rating is warranted where extension is limited to 5 degrees; a 10 percent evaluation requires extension limited to 10 degrees; a 20 percent evaluation requires extension limited to 15 degrees; a 30 percent evaluation requires extension limited to 20 degrees; a 40 percent evaluation requires extension limited to 30 degrees; and a 50 percent evaluation requires extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

Normal range of motion in a knee joint is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II.

A separate rating for limitation of extension and for limitation of flexion may be assigned. VAOPGCPREC 9-2004.

Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "moderate" and "severe" are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in order to arrive at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

In a precedent opinion, VA's General Counsel concluded that a veteran who has both arthritis and instability in his knee may receive separate ratings under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97.

GC has held that if a musculoskeletal disability is rated under a specific diagnostic code that does not involve limitation of motion and another diagnostic code based on limitation of motion may be applicable, the latter diagnostic code must be considered in light of 38 C.F.R. §§ 4.40, 4.45, and 4.59 VAOPGCPREC 9-98 (Aug. 14, 1998). The Board notes that 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not specify that a separate rating may only be assigned when there is arthritis and limitation of motion and/or painful motion. Therefore, consideration must be given as to whether separate ratings are warranted to reflect disability manifested by instability and subluxation and disability manifested by limitation of motion and/or painful motion or limitation of motion and/or painful motion on its own.

A Disability Rating in Excess of 20 Percent, Prior to April 20, 2009, and in excess of 10 Percent Prior to January 22, 2008

Prior to April 2009, at worse, flexion was limited to 108 degrees with pain and extension was limited to 10 degrees with pain. The painful limitation of flexion warranted a 10 percent rating, but no more, since the Veteran did not exhibit the function equivalent of flexion limited to 30 degrees or worse. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260. The painful limitation of extension warranted a 10 percent rating, but no more, since the Veteran did not exhibit the function equivalent of extension limited to 15 degrees or worse. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5261. The 10 percent respective ratings for limitation of motion exceed the limitation contemplated for removal of the meniscus. See Diagnostic Code 5259. The Board will also give the Veteran the benefit of the doubt, and conclude that such limitation existed since the filing of the Veteran's subject claim for increased rating on December 18, 2007.

The Veteran also had instability of the left knee. Instability was not shown on the January 2008 examination. However, the instability caused a fall in March 2008. As such, the Board accepts that there was instability. The instability was not shown in January or June 2008 when stability testing was normal. As such, the Board is unable to conclude that it was severe. However, the Board accepts that it was moderate in degree, causing a fall which resulted in a broken left radius, and will again give the Veteran the benefit of the doubt and conclude that this moderate impairment existed since the date of filing of his claim of December 18, 2007.

Therefore, the Board finds that prior to April 20, 2009, a 10 percent rating was warranted for painful and limited flexion under Diagnostic Codes 5010, 5260; a 10 percent rating was warranted for painful and limited extension under Diagnostic Codes 5010, 5261; and a separate 20 percent rating was warranted for lateral instability under Diagnostic Code 5257.

Pursuant to 38 C.F.R. § 4.25, these three ratings, combined with the 10 percent rating in effective for left radius fracture and the zero percent rating in effective for bilateral hearing loss translates to a 40 percent combined rating. The former combined rating for all disabilities was 30 percent, effective from January 22, 2008, and 20 percent, effective from December 18, 2007. Thus, a higher rating is being assigned.

A Disability Rating in Excess of 60 percent, as of June 1, 2010

Under Diagnostic Code 5055, a 100 percent evaluation is assigned for one year following the implantation of the prosthesis. A 60 percent evaluation is assigned for a prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. For a prosthetic replacement of the knee joint with intermediate degrees of residual weakness, pain, or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula). The maximum rating under these codes (Diagnostic Code 5261) is 50 percent. The minimum rating for a prosthetic replacement of the knee joint is 30 percent.

In this case, the RO assigned a 60 percent rating following the convalescence period for the left knee.

In this regard, the evidence of record demonstrates chronic residuals of the left knee replacement consisting of severe painful motion and weakness in the left knee, manifested by limitation of flexion to 45 degrees, extension limited to 20 degrees, continuous pain, and pain with repetitive use, among other subjective complaints. The Veteran is essentially prohibited from any significant ambulation.

Under Diagnostic Code 5055, a 100 percent evaluation is assigned for one year following the implantation of the prosthesis which was assigned. Otherwise, the rating code does not permit a rating in excess of 60 percent. A higher rating is not warranted because such a rating would exceed the maximum 60 percent allowable under the "amputation rule." See 38 C.F.R. §§ 4.25, 4.68, 4.71a, Diagnostic Codes 5162 to 5164 (amputation at the middle or lower thirds of the thigh; amputation of the leg with defective stump, thigh amputation recommended; and amputation not improvable by prosthesis controlled by natural knee action all warrant a 60 percent evaluation).

The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008); aff'd, Thun v. Shinseki, No. 2008-7135, 2009 WL 2096205 (Cir. 2009), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left knee disability with the established criteria found in the rating schedule for left knee disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above.

The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disability. Additionally, there is not shown to be evidence of marked interference with employment due to the disability beyond what is completed in the rating criteria. Combined with his other disabilities, the Board is assigning a TDIU, per below.

In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified 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." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the Veteran has not shown in this case is that the service-connected disability's manifestations have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case.

TDIU

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a).

The Veteran is service-connected for left knee, left radius, and bilateral hearing loss disabilities. The Veteran's combined rating prior to April 20, 2009 was 40 percent, per above. As of May 19, 2010, the disability rating for the left radius disability was increased to 20 percent. However, the overall rating had been increased to 100 percent based on the left knee surgery during that time period (from April 20, 2009 to May 31, 2010. As of June 1, 2010, the disability rating for the left knee was 60 percent, the left radius was 20 percent, and the bilateral hearing loss was zero percent, with a combined rating of 70 percent.

In sum, prior to April 20, 2009, there was a combined rating of 40 percent. From June 1, 2010, the combined rating was 60 percent. 38 C.F.R. § 4.25.

Accordingly, at a 40 percent combined rating, the Veteran's service-connected disabilities do not render him eligible for TDIU under the schedular percentage requirements contemplated by VA regulation. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a).

However, 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(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The rating board did not refer this case for extra-schedular consideration.

The essential issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a "living wage"). 38 C.F.R. § 4.16(b); Moore v. Derwinski, 1 Vet. App. 356 (1991). The record must reflect that circumstances, apart from non-service-connected conditions, place him in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his service-connected disabilities, was capable of performing the physical and mental acts required by employment, not whether he could find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The Veteran stated in his December 2007 correspondence that he lost his job due to plant closures (he worked in a plant that manufactured plastics) and had been unable to obtain work. He indicated that prospective employers saw that he had a limp and would not hire him.

The Board finds that the Veteran's service-connected disabilities alone did not preclude him from engaging in substantially gainful employment prior to his left knee surgery. A combined 40 percent rating contemplates an impairment in the Veteran's ability to perform substantially gainful employment due to the Veteran's service-connected disabilities. However, "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1. The Board believes that the VA Schedule for Rating Disabilities and the disability evaluation assigned to the Veteran's service-connected disabilities under that Schedule accurately reflected the Veteran's overall impairment to his earning capacity. He still retained significant motion in his left leg and was able to ambulate during that time period. There was additionally no apparent inability to work at a sedentary position. Therefore, a TDIU rating was not warranted.

However, as of June 1, 2010, when the total disability period ended and a combined 70 percent disability was made effective, the Board finds that a TDIU was warranted. As of that date, the Veteran meets the schedular criteria, per 38 C.F.R. § 4.16(a) and the issue is whether his service-connected disabilities preclude him from engaging in substantially gainful employment. The post-surgical VA examination showed that the Veteran has extremely limited motion in his left leg which is further complicated by other subjective complaints. In addition, repetitive motion further reduces his functionality. The Veteran indicated that he could barely straighten his leg. He cannot remain in any one position for any sustained amount of time and cannot stand more than 15-30 minutes. Although the Veteran underwent surgery, he now has less motion in his left knee than before the surgery. As noted, he also has left radius and bilateral hearing loss disabilities. Although the VA examiner felt that a sedentary job might be possible, the Board finds that there is sufficient evidence to show that the Veteran cannot remain seated for any extended period of time, such that gainful employment could be accomplished, with his current level of pain. In viewing the medical evidence of record, and the Veteran's statements, the Board finds that a TDIU is warranted. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C.A. § 5107. The Board has resolved all reasonable doubt in this case in the Veteran's favor. Accordingly, a TDIU is warranted, effective from June 1, 2010.

ORDER

Prior to April 20, 2009, a 10 percent rating for painful and limited flexion of the knee, a 10 percent rating for painful and limited extension of the knee and a 20 percent rating for lateral instability of the knee, are granted, subject to the law and regulations governing the payment of monetary benefits.

As of June 1, 2010, a disability rating in excess of 60 percent for a left knee disability is denied.

Prior to April 20, 2009, a TDIU is denied.

Effective June 1, 2010, a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits.

____________________________________________

Michael J. Skaltsounis

Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

http://www.va.gov/vetapp11/Files3/1121094.txt

[cooter]

I'm sure the ones working without limbs are working because they want to, not that they have to. Don't know if there's a copy here of the actual exam report they use for knee's, but like I said before, the examiner wrote positive on every function loss stated. The 38 CFR 4.40 and the report (exam) were word for word almost. So I take it their saying I am seriously disabled according to what I've read. Hopefully someone will explain it better for me.

Coot

[cooter]

Your such a sweetheart carlie. It sounded like all the Vet had to do was wait till he got to 70% to get awarded. I'm already there with 60% for right knee. Can you explain that para on the 38 CFR 4.40 for me. Am I correct to assume that is saying unemployable.

Coot

[Hoppy]

Did they ask the examiner whether or not your disability prevented you from working in another section of the exam? Usually when an examiner makes a specific statement that you cannot work they schedule and social and industrial functioning exam or an extra schedular evaluation. If you have a single disability rated at 60% they should screen you for TDIU. I really doubt that the VA will give you TDIU becase you choose not to work because of your knee unless a doctor says it prevents you from working at any job. I have not been able to find any reference equating 4.40 to unemployability. If I find something that does equate it to unemployability i will post it.

[cooter]

carlie

After reading the whole case, I'm pretty sure by how it was explained in this case what 38 CFR 4.40 entails. If I understand it correctly, it all has to do with limitation of motion. and how sever it is to make it seriously disabled. Again, your a sweetheart for finding this for me. I owe you another one! xoxo

Coot