Hudgens v. Gibson

Hudgens v. Gibson, 26 Vet.App. 558 (June 27, 2014)
DIAGNOSTIC CODE (DC) 5055 ONLY APPLIES TO TOTAL KNEE REPLACEMENTS
Held: The plain language of DC 5055 does not apply to partial knee replacements. However, the Board erred by not addressing whether the veteran’s partial knee replacement should be rated by analogy under this or another diagnostic code.

The veteran injured his knee in service and, years later, underwent a partial knee replacement. He was service connected for his right knee, rated 10% for degenerative joint disease and 10% for instability. The RO later reduced the instability rating to 0%, and the veteran appealed. He argued that he should be rated by analogy under DC 5055, the DC for “knee replacement.” He also argued that the rating reduction was in error because the record contained medical evidence of instability. In addition, he argued for a higher rating under two other DCs.

The CAVC held that the “plain language of DC 5055 does not apply to partial knee replacements.” The CAVC acknowledged Mr. Hudgens’ argument that 11 Board decisions rated partial knee replacements under DC 5055, but stated that these decisions are not in the record and are not binding on the Board or the Court. Nevertheless, although the Court found that the Board did not err in determining that the plain language of DC 5055 only applied to total knee replacements, the Court agreed that the Board erred by not addressing whether Mr. Hudgens’ condition should be rated by analogy under this DC, “which contemplates symptomatology including weakness, pain, and limitation of motion,” or whether another DC should have been considered. Because there is no DC for partial knee replacement, the Board should have addressed Mr. Hudgens’ analogy argument.

The Court also determined that the rating reduction was in error, as the record contained medical evidence of instability. The Court determined that reversal was the appropriate remedy as “VA’s failure to observe applicable law and consider all relevant evidence renders reduction or severance decisions . . . ‘void ab initio.’” (quoting King v. Shinseki, 26 Vet.App. 484, 492 (2014)).

Finally, the Court agreed with Mr. Hudgens that the Board failed to address whether a higher rating was warranted under DC 5258 or 5252 and remanded for the Board to explain its failure “to address the evidence of right knee dislocation, swelling, and pain or explain why they are not evidence of” symptoms in DC 5259.