Partial Knee Replacements and a Minimum 30% rating
NOVA: Hudgens and Partial Knee Replacements Continued
A recent Federal Circuit decision makes it likely that any veteran who is service connected for a knee disability and has had a partial knee replacement does not have as high a rating as they should.
NOVA v. Secretary, Case Number 2020-1321, decided September 20, 2022 is a Federal Circuit case that discusses the VA’s attempt to change the knee replacements diagnostic code to exclude partial knee replacements.
This is a case I am well acquainted with as I was the attorney who argued and won the underlying case of Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016), which found that the veteran’s partial knee replacement qualified for a higher rating under Diagnostic Code 5055.
Hudgens argued that Diagnostic Code 5055 applied to both partial and total knee replacements and guaranteed a minimum 30% rating. The VA argued it only applied to total knee replacements and went so far as to publish a new rule or guidance limiting the code to total knee replacements while the case was pending. The Federal Circuit agreed with my arguments that Diagnostic Code 5055 was at a minimum ambiguous and that any ambiguity should be read in favor of the veteran and that no deference was owed to the VA’s own interpretation. The result was a win for Mr. Hudgens. However, the VA used the rule or guidance it had issued during Hudgens to deny future cases.
This case involved a challenge to that rule or guidance. In this case, the Court determined the VA’s rule or guidance excluding partial knee replacements from Diagnostic Code 5055 was arbitrary and capricious and that Hudgens was controlling as to the interpretation.