Case A26024142

Summary

The Veteran, a Marine Corps Veteran who served from January 1973 to July 1973, appeals the April 2020 Rating Decision concerning his right knee disability. The Veteran sought an extension of a temporary total disability rating beyond October 2019 for his service-connected right knee, which had undergone a total knee arthroplasty (TKA) in September 2018 and a revision surgery in February 2019. The Board reviewed the evidence, including the operative notes and VA treatment records, and applied the pre-February 7, 2021, criteria for Diagnostic Code 5055. The Board found that the Veteran was entitled to a temporary total rating for convalescence from February 22, 2019, to March 22, 2019, and a subsequent temporary total rating under DC 5055 from March 23, 2019, to March 23, 2020, acknowledging the precedent that multiple yearlong total disability ratings are permissible for multiple replacements of the same knee. Following this period, the Board awarded an increased disability rating of 60 percent from March 23, 2020, based on chronic residuals of severe painful motion and weakness, which is the maximum schedular evaluation available under DC 5055 for these residuals. The Board considered other applicable diagnostic codes and the amputation rule, concluding that no higher rating was warranted and that separate evaluations would constitute improper pyramiding. The Board resolved all doubt in the Veteran's favor, resulting in the grant of his claim.

Rationale

Temporary total rating for convalescence granted Feb 22, 2019 - Mar 22, 2019.; Temporary total rating under DC 5055 granted Mar 23, 2019 - Mar 23, 2020.; Increased rating of 60 percent granted from Mar 23, 2020, for chronic residuals of severe painful motion and weakness.

Full Decision Text

Citation Nr: A26024142
Decision Date: 03/18/26	Archive Date: 03/18/26

DOCKET NO. 200522-89715
DATE:       March 18, 2026

ORDER

Entitlement to temporary total disability rating for a right knee disability status post total knee replacement and revision to March 23, 2020, is granted.

From March 23, 2020, a 60 percent increased disability rating for right knee disability, but no higher, is granted. 

FINDINGS OF FACT

1. On February 22, 2019, the Veteran underwent revision of his total right knee replacement including implantation of a prosthesis, requiring a month's long period of convalescence through March 22, 2019.

2. Following the surgery, the Veteran's right knee status post total knee replacement revision was manifested by chronic residuals consisting of severe painful motion or weakness.

CONCLUSIONS OF LAW

1. From February 22, 2019, to March 22, 2019, the criteria for a temporary total rating based on surgery necessitating convalescence for a right knee total replacement revision surgery are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30.

2. From March 23, 2019, to March 23, 2020, the criteria for a temporary total rating following a right knee total replacement revision surgery are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055 (as in effect prior to February 7, 2021).

3. From March 23, 2020, the criteria for a 60 percent increased disability rating for right knee replacement and revision, but no higher, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5055. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Marine Corps from January 1973 to July 1973. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2020 Rating Decision issued by a Department of Veterans Affairs (VA) regional office, which is the agency of original jurisdiction (AOJ). The AOJ in that decision addressed the merits of the underlying claim, implicitly acknowledging that new and relevant evidence had been received in order to readjudicate the claim; a finding which the Board does not disturb, and will thus proceed to the merits as well.

In the May 2020 Notice of Disagreement, the Veteran elected the Hearing docket. An April 2024 notification advised the Veteran that a hearing was scheduled for July 2, 2024. The Veteran did not appear for the scheduled Board hearing.

Therefore, the Board may only consider the evidence of record at the time of the April 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran or their representative within 90 days following the date of the scheduled hearing. 38?C.F.R. §?20.302(c). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date of the scheduled Board hearing, or (2) more than 90 days following the date of the scheduled hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(c), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. Entitlement to an extension of temporary 100 percent disability rating for the Veteran's right knee disability after October 2019.

The Veteran seeks an extension of temporary 100 percent rating beyond October 2019 for his service-connected right knee disability.

By way of background, the Veteran underwent a total knee replacement surgery in September 2018. Thus, the AOJ awarded the Veteran a 100 percent temporary rating from September 2018 to November 2019 under 38 C.F.R. § 4.30
 evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. Entitlement to an extension of temporary 100 percent disability rating for the Veteran's right knee disability after October 2019.

The Veteran seeks an extension of temporary 100 percent rating beyond October 2019 for his service-connected right knee disability.

By way of background, the Veteran underwent a total knee replacement surgery in September 2018. Thus, the AOJ awarded the Veteran a 100 percent temporary rating from September 2018 to November 2019 under 38 C.F.R. § 4.30 and 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055. The Board emphasizes that this period is comprised of two distinct awards, one under 38 C.F.R. § 4.30 for convalescence for September 2018, and the second for knee replacement residuals for October 2018 through October 2019.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.

Pursuant to DC 5055, prior to the February 7, 2021, regulation changes, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DC 5256, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. Note (1) following the prosthetic implant diagnostic codes (to include DC 5055) indicates the 100 percent rating for 1 year following implantation of prosthesis commences after the initial grant of the 1-month total rating assigned under 38 C.F.R. § 4.30 for surgical convalescence.

Importantly, the Federal Circuit held that the text of DC 5055 prior to the February 7, 2021, amendments did not unambiguously exclude partial knee replacements. See National Organization of Veterans' Advocates (NOVA) v. VA, 48 F.4th 1307 (Fed. Cir. 2022); see also Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016). Moreover, nothing in DC 5055 states that the Veteran is precluded from being assigned multiple yearlong total disability ratings under DC 5055 for multiple replacements of the same knee.

Turning to the evidence of record, the record is clear the Veteran underwent a total knee arthroplasty (TKA) on September 13, 2018. See e.g. February 2020 VA Examination Report. Thereafter, he developed contracture and loss of extension in the knee, and required a revision of the TKA on
 48 F.4th 1307 (Fed. Cir. 2022); see also Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016). Moreover, nothing in DC 5055 states that the Veteran is precluded from being assigned multiple yearlong total disability ratings under DC 5055 for multiple replacements of the same knee.

Turning to the evidence of record, the record is clear the Veteran underwent a total knee arthroplasty (TKA) on September 13, 2018. See e.g. February 2020 VA Examination Report. Thereafter, he developed contracture and loss of extension in the knee, and required a revision of the TKA on February 22, 2019. Id. The operative note from the surgery includes that the polymer in the knee was removed and the knee was debrided, after which a new, larger polymer was implanted into the knee. February 2019 Operative Note.

VA treatment records show that after the February 22, 2019, revision surgery the Veteran was discharged from the facility on February 24, 2019. March 2019 and April 2019 records show the Veteran attended physical therapy, and he had still not been cleared to drive by March 26, 2019, a month following the surgery. 

Initially, as the Veteran was not cleared to drive for a month after surgery, meets the criteria for a temporary total evaluation, as the right knee revision required at least one month of convalescence. Thus, a temporary total rating for convalescence from February 22, 2019, to March 22, 2019, is warranted under 38 C.F.R. § 4.30.

Thereafter, a temporary total evaluation pursuant to DC 5055 is warranted from March 23, 2019, to March 23, 2020. In this regard, the Board acknowledges the Veteran's prior total knee replacement, but finds that the plain language of DC 5055 conditions a 100 percent evaluation on "implantation of prosthesis," which the Veteran underwent. Thus, a one-year total evaluation under DC 5055 for the partial knee replacement is warranted. See NOVA, 48 F.4th 1307. 

2. Entitlement to a disability rating in excess of 30 percent from November 1, 2019, for a right knee disability.

Following the temporary total evaluation, as above the pre-amended version of DC 5055 provides a minimum evaluation of 30 percent following prosthetic replacement of a knee joint. C.F.R. § 4.71a, DC 5055 (as in effect prior to February 7, 2021).

Since the February 2019 surgery, the Veteran has consistently reported severe pain and impairment. Importantly, the February 2020 examiner characterized the Veteran's chronic post-surgical residuals as consisting of severe painful motion and weakness. The examination findings included limitation of motion for several ranges of motion, with pain, and instability of the joint. Accordingly the Board awards an increased disability rating of 60 percent from March 23, 2020.

The 60 percent rating assigned under DC 5055 is the maximum schedular evaluation available under that DC (excluding the total evaluation assigned following surgery). Consequently, higher evaluations are not warranted for the Veteran's service-connected right knee.

The Board has considered all potentially applicable DCs in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, there are no higher evaluations available under any other provision governing the evaluation of knee disabilities. Chronic pain and weakness affecting the Veteran's range of motion are contemplated in the evaluation assigned under DC 5055, which is intended to compensate for all residuals of a knee replacement. Thus, to assign separate evaluations under other DCs applicable to the knees, for example DC 5257, would constitute improper pyramiding. 38 C.F.R. § 4.14; see Tedesco v. Wilkie, 31 Vet. App. 360, 367, n.5 (2019).

Additionally, the Board notes that the "amputation rule" precludes separate compensable evaluations for the knee in this case because the rule provides that the combined evaluation for disabilities of an extremity shall not exceed the evaluation for the amputation at that elective level, were amputation to be performed. 38 C.F.R. § 4.68. Here, a 60 percent evaluation is provided for an amputation of the thigh, above the knee, at the middle or lower third. See 38 C.F.R. § 4.71a, DCs 5162, 5163, 5164. Because the Veteran's disabilities involve the knee, or below the middle
 367, n.5 (2019).

Additionally, the Board notes that the "amputation rule" precludes separate compensable evaluations for the knee in this case because the rule provides that the combined evaluation for disabilities of an extremity shall not exceed the evaluation for the amputation at that elective level, were amputation to be performed. 38 C.F.R. § 4.68. Here, a 60 percent evaluation is provided for an amputation of the thigh, above the knee, at the middle or lower third. See 38 C.F.R. § 4.71a, DCs 5162, 5163, 5164. Because the Veteran's disabilities involve the knee, or below the middle third of the thigh, the amputation rule precludes a schedular evaluation in excess of 60 percent.

(Continued on the next page)

?

For these reasons, the Board finds that the Veteran's symptom history warrants a 60 percent evaluation for right knee disability from March 23, 2020. Neither the Veteran nor her representatives have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In reaching this conclusion, the Board has resolved all doubt in the Veteran's favor, which has resulted in a grant of his claim. See 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 781.

 

 

J.M. ESTES

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Pulaski, Michael F.

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.