Citation Nr: 1317702 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 02-16 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Whether the appellant is entitled to a separate compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259, in addition to the compensable ratings already in effect for his service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from August 1977 to August 1983. The procedural history of this case is quite complex and requires some explanation in order to clarify the question at issue. In a November 1997 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, granted entitlement to service connection for residuals of a right knee injury with right lateral meniscectomy and assigned an initial 10 percent disability rating, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5259 (symptomatic removal of the semilunar cartilage). The award was effective May 9, 1997, the date of receipt of the appellant's original claim. The appellant did not appeal the RO's determination. On January 22, 2002, VA received the appellant's claim of entitlement to an increased rating for his right knee disability alleging that his disorder had worsened. The matter currently on appeal originally came to the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of Pittsburgh RO which denied entitlement to a rating in excess of 10 percent for residuals of a right knee injury with right lateral meniscectomy, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5259. The appellant appealed the RO's determination. In March 2004, the Board remanded the matter to the RO for additional evidentiary development. While the matter was in remand status, in an August 2005 rating decision, the RO increased the rating for the appellant's residuals of a right knee injury with lateral meniscectomy to 30 percent, effective January 22, 2002, the date of the receipt of his claim for an increased rating, changing the criteria used to rate the appellant's disability to 38 C.F.R. § 4.71a, Diagnostic Code 5257 (impairment of the knee due to recurrent subluxation or lateral instability). The appellant continued his appeal, arguing that he was entitled to a rating in excess of 30 percent. In December 2005, the Board again remanded the matter to the RO for additional evidentiary development. While the matter was in remand status, in a March 2009 rating decision, the RO granted service connection for post-traumatic arthritis of the right knee, and assigned an initial separate 10 percent disability rating, effective January 22, 2002, pursuant to Diagnostic Codes 5010-5260 (pertaining to arthritis and limitation of motion). See VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997); 62 Fed. Reg. 63,604 (1997); see also VA O.G.C. Prec. Op. No. 9-98 (Aug. 14, 1998); 63 Fed. Reg. 56,704 (1998) (holding that compensating a claimant for separate functional impairment under Diagnostic Code 5257 (for instability) and Diagnostic Code 5003 (for arthritis and limitation of motion or arthritis and painful motion) does not constitute pyramiding). The appellant did not appeal the determination. Hence, any downstream questions regarding the initial rating and effective date stemming from that decision are not before the Board. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). In November 2009, the Board denied entitlement to a rating in excess of 30 percent for residuals of a right knee injury with lateral meniscectomy, including pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2010, while the matter was pending before the Court, the appellant's then-attorney, and a representative of VA's Office of General Counsel submitted a joint motion for remand for the purpose of consideration by the Board of the appellant's entitlement to a separate compensable rating under Diagnostic Code 5259, in addition to the compensable ratings already in effect under Diagnostic Codes 5010, 5260, and 5257. In September 2010, the Court granted the parties' motion, vacated the Board's November 2009 decision, and remanded the matter for action consistent with the September 2010 joint motion. In September 2011, the Board remanded the matter to the RO via the Appeals Management Center (AMC) for additional evidentiary development and due process considerations, to include initial RO consideration of the appellant's entitlement to a separate compensable rating under Diagnostic Code 5259. See Bernard v Brown, 4 Vet. App. 384 (1993) (holding that before the Board considers a question that has not been addressed by the agency of original jurisdiction, it must consider whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby). While the matter was in remand status, in a September 2012, the AMC issued a rating decision purportedly "granting" service connection for right knee instability and assigning an initial 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, effective October 28, 2011. In addition, the AMC continued the previously-assigned 30 percent rating for residuals of a right knee injury from January 22, 2002, also pursuant to Diagnostic Code 5257. The AMC did not, however, consider the appellant's entitlement to a separate compensable rating under Diagnostic Code 5259. In November 2012, the Board again remanded the matter to the RO via the AMC for additional evidentiary development and due process considerations, to include specific consideration of the appellant's entitlement to a separate compensable rating under Diagnostic Code 5259. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). While the matter was in remand status, in March 2013, the AMC issued a rating decision assigning a 20 percent rating for residuals of a right knee injury with lateral meniscectomy, effective May 9, 1997, pursuant to Diagnostic Code 5257; and continuing a 30 percent rating from January 22, 2002, pursuant to Diagnostic Code 5257. In reaching its determination in this regard, the AMC concluded that a separate compensable rating under Diagnostic Code 5259 was not warranted. Also in the March 2013 rating decision, the AMC indicated that it had "severed" service connection for right knee instability as granted in the September 2012 rating decision, finding that the rating decision had been clearly and unmistakably erroneous. The RO explained that because service connection for right knee instability had already been in effect and compensated pursuant to 5257, it was clearly and unmistakably erroneous for the September 2012 rating decision to grant service connection for instability and assign a separate 10 percent rating under the same diagnostic code based on the same symptomatology. The RO explained to the appellant that its actions in this regard had not affected his overall rating or pay. Here, despite the AMC's use of the term "severance," it is clear that the RO's actions did not "sever" service connection for that disability, triggering the legal criteria protecting service connection of disabilities. See e.g. 38 C.F.R. § 3.105(d). In other words, the determination that the appellant had incurred a disorder manifested by right knee instability in service was not changed. See Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011) (noting that a change in diagnostic code does not sever service connection but, rather, more appropriately captures the nature of a disability). Further, the RO's actions did not constitute a rating reduction, triggering the legal criteria pertaining to reduction in evaluations. 38 C.F.R. § 3.105(e). Indeed, the duplicative rating for instability had been in effect for only a few months and the RO explained that its corrective actions had not resulted in a reduction or discontinuance of the appellant's combined rating or compensation. Murray v. Shinseki, 24 Vet. App. 420 (2011). Rather, it is clear that the RO's actions constituted correction of what had been an administrative error without prejudice to the appellant. The Board notes that the record currently available to the Board contains no indication that the appellant initiated an appeal with any aspect of the AMC's March 2013 rating decision. Thus, the sole issue remaining for consideration by the Board is the appellant's entitlement to a separate compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259, in addition to the compensable ratings already in effect for his service-connected right knee disability. FINDINGS OF FACT 1. The appellant's service-connected right knee disability is manifested by symptoms which include arthritis, limitation of motion, and functional loss due to pain, swelling, weakness, fatigability, and lack of endurance; as well as additional symptoms such as instability, giving way, and locking resulting in severe right knee impairment. 2. The symptoms caused by the appellant's right knee disorder are contemplated in the compensable ratings currently assigned for post-traumatic right knee arthritis and residuals of a right knee injury with lateral meniscectomy pursuant to Diagnostic Codes 5010, 5260, and 5257. 3. The Veteran is not shown to exhibit additional symptomatology attributable to the right lateral meniscectomy itself which does not overlap or which would entitle him to an additional separate compensable rating under Diagnostic Code 5259. CONCLUSION OF LAW The criteria for entitlement to a separate compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259, in addition to the compensable ratings already in effect for the service-connected right knee disability, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5259 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. As previously discussed in the Board's November 2009 decision, VA has repeatedly notified the appellant of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him, and how ratings and effective dates are determined. VA has also fulfilled its duty to assist by obtaining the relevant and available evidence which the appellant has specifically identified and authorized VA to obtain and, and as warranted by law, obtaining adequate VA medical examinations. Neither he nor his representative has argued otherwise. Sickels v. Shinseki, 643 F3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). The Board concludes that there is no indication of any VA error in notifying or assisting the appellant that reasonably affects the fairness of the adjudication. This conclusion is strengthened by the fact that neither the September 2010 joint motion nor the Court's subsequent order contains any reference to VCAA deficiencies. Analysis As set forth above, the appellant is currently in receipt of a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260, the diagnostic codes pertaining to traumatic arthritis and limitation of knee motion. See also 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995) (providing for consideration of additional functional impairment due to factors such as pain, weakness, fatigue, incoordination, and lack of endurance when evaluating disabilities of the joints). A review of the record indicates that the portion of the appellant's service-connected right knee disability rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260 is based on X-ray findings of right knee arthritis, a noncompensable limitation of flexion, and functional loss due to factors such as pain, swelling, weakness, fatigability, and lack of endurance. As set forth above in the Introduction portion of this decision, the appellant's entitlement to a higher rating for this portion of his service-connected right knee disability is not within the Board's jurisdiction. See e.g. Joint Motion for Remand at page 4, footnote 1. The appellant is also in receipt of a separate 30 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257, pertaining to other impairment of the knee. As previously discussed by the Board in its September 2009 decision, under this provision, a maximum 30 percent rating is warranted for severe impairment of the knee due to recurrent subluxation or lateral instability. The record on appeal indicates that this rating was assigned in consideration of the appellant's symptoms of severe impairment due to pain, instability, and giving way for which he uses a knee brace to ambulate. Again, this is the maximum rating available and neither the appellant nor his representative has argued otherwise nor did the parties challenge the Board's conclusion in this regard in the September 2010 joint motion. Rather, the only issue for consideration is whether the appellant is entitled to a separate compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259. The Board has carefully reviewed the record in its entirety for the express purpose of considering whether the appellant is entitled to an additional, separate 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under that code, a maximum 10 percent rating is assigned for removal of semilunar cartilage which is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. In this regard, the appellant's service treatment records confirm that in April 1980, he underwent a right lateral meniscectomy secondary to an earlier right knee injury he sustained while playing football. Although he was originally compensated at the maximum 10 percent rate based on symptomatic residuals under Diagnostic Code 5259, as discussed in detail above, the RO elected to rate his symptomatology under Diagnostic Code 5257, as it provided for higher available schedular ratings for his symptoms. Hence, the Board finds that the symptomatic residuals associated with the appellant's meniscectomy are already compensated in the assigned ratings discussed above under Diagnostic Codes 5010, 5260, and 5257. The Board is unable to identify additional symptoms which are not duplicative of or overlapping with those already contemplated and compensated. Significantly, neither the appellant nor his representative has pointed to any such distinct symptomatology. Under these circumstances, the Board concludes that under the facts of this case, assigning a separate compensable rating for the appellant's residuals of a right knee injury with right lateral meniscectomy under 38 C.F.R. § 4.71a, Diagnostic Code 5259 would constitute pyramiding prohibited by 38 C.F.R. 4.14. See Esteban v. Brown, 6 Vet. App. 259 (1994). In reaching this conclusion the Board has carefully reviewed both the appellant's lay statements as well the objective clinical evidence, including VA outpatient treatment reports and examination reports. Indeed, in October 2011 the appellant underwent a VA medical examination in order to more clearly ascertain the symptomatology associated with his service-connected right knee disability, including that which was associated with the meniscectomy. The October 2011 examination report documented complaints of pain which increased with changes in the weather, feelings of laxity and subluxation, a noncompensable limitation of motion, and functional loss due to factors such as weakness, fatigability, incoordination, pain, and swelling. The appellant was noted to use a brace for ambulation. Again, these symptoms were and are specifically contemplated in assigned current ratings under 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260, and 5257. It was also noted that the appellant had a history of a right meniscal tear with frequent episodes of locking, pain and effusion and had undergone a right meniscectomy in 1980. The examiner indicated that the residual signs and symptoms of that procedure included recurrent right knee pain and a feeling of subluxation. The examiner also noted that the appellant had an asymptomatic surgical scar. Finally, the examiner indicated that the appellant exhibited no other pertinent physical findings, complications, conditions, signs or symptoms related to the service-connected residuals of a right knee injury with meniscectomy. The examiner again reviewed the record in December 2012. He noted that at the time of the appellant's May 2002 VA medical examination, symptoms of right knee pain, weakness, stiffness, swelling, heat, redness, instability, giving way, locking, fatigability, and lack of endurance with periods of flare-ups had been documented. The examiner opined that such symptoms had been present for many years, given the examiner's notations that the appellant had reported such symptoms for the past five years. Based on the foregoing, the Board concludes that a separate compensable rating under Diagnostic Code 5259 is not warranted. Again, the record shows that the appellant's right knee disability is manifested by symptoms which include arthritis, limitation of motion, and functional loss due to pain, swelling, weakness, fatigability, and lack of endurance; as well as additional symptoms such as instability, giving way, and locking resulting in severe right knee impairment. These symptoms are all contemplated in the compensable ratings currently assigned for his service-connected post-traumatic right knee arthritis and residuals of a right knee injury with lateral meniscectomy pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260, and 5257. He does not show additional symptomatology attributable to the right lateral meniscectomy itself which would entitle him to an additional separate compensable rating under Diagnostic Code 5259. The appellant's symptoms of joint pain, locking, and effusion which have been attributed to the meniscectomy overlap with the symptomatology upon which the ratings for knee impairment under Diagnostic Codes 5010, 5260 and 5257 have been based. The Board also notes that the record on appeal shows that the appellant's service-connected residuals of a right knee injury with right meniscectomy includes scarring. The evidence, however, indicates that such scaring is asymptomatic and does not otherwise meet the criteria for a separate compensable rating. The appellant does not contend otherwise. 38 C.F.R. § 4.118, Diagnostic Codes 7800- 7805. Thus, there is no basis for a separate compensable rating for scarring. In summary, the Board finds no evidence of additional symptoms referable to the appellant's service-connected residuals of a right knee injury with right lateral meniscectomy which have not already been compensated by the ratings currently assigned. Moreover, the appellant's service-connected right knee disability has not necessitated frequent periods of hospitalization and he has not contended otherwise. Although his disability required him to retrain in a new occupation, it has not been shown to cause marked interference with employment beyond that contemplated by the currently-assigned ratings. Under these circumstances, referral for extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Finally, the Board has considered the decision of the Court in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The record does not show, nor has the appellant contended, however, that he is unable to obtain or retain substantially gainful employment due to his service-connected right knee disability. In its November 2012 remand, the Board noted that the appellant had not raised the issue of entitlement to a total rating based on individual unemployability due to service-connected disability and advised him that if he wished to file a claim for that benefit, he should contact the RO. The record currently available to the Board contains no indication that the appellant has since raised the matter. Thus, consideration of a total rating based on individual unemployability due to service-connected disability is not warranted. ORDER Entitlement to a separate compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259, in addition to the compensable ratings already in effect for his service-connected right knee disability is not warranted. The appeal is denied. ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs