CAVC Decision on Partial Knee Replacement under DC 5055

On June 27, 2014, the Court of Appeals for Veterans Claims (CAVC) published a decision in Hudgens v. Gibson.  The critical operative regulation the CAVC was interpreting was 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055 (knee replacement (prosthesis)) and whether DC  5055 applies to partial knee replacement (PKR).  This is a question commonly posed by veterans on popular veteran social media sites like Veterans Benefits Network, so it is important for both veteran and Veteran Service Officers (VSOs) to understand how DC 5055 applies to PKRs.

The majority held that “the plain language of DC 5055[] does not apply to partial knee replacements.”  Therefore, a PKR can be appropriately rated under the diagnostic codes for Knee and Leg (DC 5256-5263), rather than the diagnostic codes for Prosthetic Implants.  However, the majority reversed and remanded to the Board of Veterans’ Appeals to assess whether Mr. Hudgens should still be rated by analogy [38 C.F.R. § 4.20] under DC 5055, or whether Mr. Hudgens is entitled to a higher rating percentage under the various diagnostic codes affecting Knee and Leg.

Chief Judge Kasold, dissenting in part, held that the regulatory language of DC 5055 “is anything but clear . . . as to whether it covers only total knee replacements or whether it also covers partial knee replacements.”  Chief Judge Kasold also noted that the Board of Veterans’ Appeals have, in the past, applied to DC 5055 to PKRs on at least eleven occasions.  Given the fact that Chief Judge Kasold found there was some ambiguity in the regulatory language, he then considered the other canons of statutory/regulatory interpretation.  While Chief Judge Kasold noted that deference is generally provided to an agency’s interpretation of its own regulations [commonly called “Chevron deference”], in light the inconsistent agency interpretations of DC 5055 “there is no basis to defer to the Secretary’s proffered interpretation.”  Consequently, Chief Judge Kasold, citing to Brown v. Gardner, 513 U.S. 115, 118 (1994) (“[I]nterpretive doubt is to be resolved in the veteran’s favor [under Title 38]), opined that DC 5055 should apply to PKRs.

What should the average veteran take away from the decision in Hudgens v. Gibson . . . beyond think carefully if you are contemplating using your GI Bill to going to law school?  Foremost, if you had a PKR in will likely be rated under Knee and Leg (DC 5256-5263) rather than DC 5055. Second, regardless of what stage you are in the VA adjudicative process, thorough and contemporaneous medical evidence documenting the level of disability is crucial so that the agency can apply the most operative diagnostic code to the disability picture.

What should attorneys and advocates for veterans take away from the decision in Hudgens v. Gibson? Unless resolved by the U.S. Supreme Court, there will always be a tension in regulatory interpretation in apply Chevron deference to veterans benefits under Title 38 when Gardner and its progeny provide for “interpretive doubt in the veteran’s favor.”

4 thoughts on “CAVC Decision on Partial Knee Replacement under DC 5055

  1. Thank you for helping veterans and for posting the highlights of this decision, but this Court decision is a disgrace. Until 2009, the VA, applying Brown, would commonly apply 5055 to any prosthetic implant of the knee. Then, in 2009, an unnamed individual was provided the opportunity to place their restrictive and unfounded opinion into a VA newsletter. No laws were changed, and no regulations were rewritten. Yet, that newsletter was used as guidance for the VA offices. This is ridiculous, yet that is how the VA operates, with opinion and personally anti-veteran bias (especially in their hiring and promotion policies – another issue).
    On the basis of this one paragraph in this one newsletter, a historic and consistent application of 5055 was changed thus leading to the Hudgens v. Gibson decision. With no legal or regulatory changes (until this decision), the interpretation and application of this code was changed immediately. How is this possible or even legally allowable? I suppose that pending appeals, arguments, and decisions were all stagnated until the appropriate judges could be appointed assuring the preferred anti-veteran decision would be achieved. I am just astonished that the language of the arguments and decision continue to focus on total vs. partial, rather than the implantation of a prosthetic device. There is no ambiguity in whether a devise is a prosthetic implant. The section of the laws and regulations in question reads “prosthetic implants” with no mention of joint resurfacing or amount thereof. 11 previously cited decisions in favor, yet only 3 against with no intention of the Secretary to reverse any of the 11 (depending on the time, it would likely be illegal to anyway). Brown requires that items of contention are to be resolved in the favor of the veteran. To skirt Brown, personal opinions have been put forth and held as fact. I feel the Supreme Court will likely not bother with this, and I am saddened at the poor prospect that this decision will be overturned.
    Lastly, It is quite disturbing to me that the VA employs dozens of GS15 lawyers in the pursuit of restricting and denying benefits to veterans.
    Thank you again for highlighting this issue and for your defense of veterans.
    Regards.
    Donnie H.

  2. Donnie H., Hudgens was appealed to the Fed. Cir. in December 2014, I’ll let folks know outcome when a decision is reached. Seth *Edit, figure I’d add that Donnie H is correct about the C&P Bulletin effectively changing how the VA evaluated PKR/TKR and this was not subject to the notice and comment period under APA. In my humble opinion, this will be an issue if the Fed. Cir. finds ambiguity in the regulatory language of DC 5051-5056. If you break the regulatory language of 5055 into its component parts “prosthetic replacement of knee joint” there is little question that the term “prosthetic replacement” would include unicompartmental, bicompartmental, and total. The question therefore is whether there is ambiguity in the term “knee joint”. Majority held negative, dissent said affirmative. From my perspective, other diagnostic codes use the terms “entire” and “total” when they want to reflect the whole body part. The fact that DCs 5051-5056 do not use the adjective “total” in relation to the operative body part reflects that the drafter did not intended to limit. One day I’ll have to go through the old CFRs to see the regulatory history (to the extent it exists)* Donnie, did pull legislative history, Prosthetic Implants, 43 Fed. Reg. 45348, which was enacted in 1978. Really no indication one direction or other of intent for operative question. Going back in time prior to Part 4 of Title 38 (1945 equivalent of Schedule of Ratings) would be of no assistance. If I think of anything will email Hudgens’ counsel . . .

  3. All,
    I have bilateral bi-compartmental knee replacements. I was rated at 30% each; however, due to a less than stellar result (intense pain and related motor skills, etc.), I requested an increase from 30% to 60% emphasizing that both knees met requirements for same, but the right being considerably worse than the left.

    After filing same under the fully developed rule (in its beginning stages before formed up) and after waiting, inquiring, etc., more than a year later I received a rating reduction, from 30% for both to 10% left and 0% right (unbelievable).

    My physician, a very highly regarded specialist and general partner of Florida Orthopedic Institute, wrote a very clear letter providing that a bicompartmental knee replacement was, by medical definition, a total knee replacement. I submitted same as evidence and requested a summary reconsideration by the RO. I have attached same here, as well as his more recent letter re my right total hip replacement in which he again elaborates re my knee replacements.

    What are your thoughts..?

    Bernasek Ltr PKRvsTKR.pdf
    Bernasek Ltr 030415 re Hooks Right Hip Replacement

    Dock Hooks | CDR/SEAL (Retired) | Attorney at Law
    PO Box 2390 | Atlantic Beach N.C 28512
    252-725-2434 | dockhooks@mac.com

  4. Dock: Foremost, I would want to see initial Rating Decision (granting 30% bilaterally) and the recent rating decision (reducing to 10% and 0%), which I assume proposing reduction. Procedurally, something is amiss I suspect. Knees can technically have different diagnostic codes (a separate ratings for issues such as extension/flexion/laxity). Substantively, I’d want to see the recent evals on knee. I’ll email you separately. Thankfully, I cannot access the PDF you provided . . . this is a good thing since the internet has a long memory. Seth

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