Citation Nr: 1318240 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-43 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an effective date earlier than November 28, 2006, for the award of a compensable rating for right knee disability, status post meniscus tear. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which awarded him a 10 percent rating for the right knee disability and assigned an effective date of November 28, 2006. The Veteran alleges he warrants an earlier effective date for a compensable rating. In an April 2009 rating decision, the RO increased the rating to 20 percent, effective November 28, 2006. In May 2011, the Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. In a January 1995 rating decision, the RO awarded service connection for right knee condition, status post meniscal tear, and assigned a noncompensable rating, effective July 7, 1994. 2. The notification is presumed to have been sent to the Veteran's last known address, and the Veteran is presumed to have received notification of the rating decision, to include his appeal rights. 3. He did not appeal the rating decision within one year of the decision and new and material evidence was not received within one year of the rating decision. Thus, the January 1995 rating decision is final. 4. The Veteran next submitted a claim for increase for the right knee disability on November 28, 2006. 5. There is evidence within one year of the November 28, 2006, claim for increase showing increased symptoms involving the right knee; however, these symptoms are due to an intercurrent injury and not the service-connected disability. 6 . There was no formal claim, informal claim, or written intent to file a claim for an increased rating for the right knee between 1995 and November 2006. CONCLUSION OF LAW The criteria for an effective date earlier than November 28, 2006, for the award of a compensable rating for right knee disability, status post meniscal tear, have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). As to the duty to notify, this claim stems from the Veteran having submitted a claim for increase for the right knee, which claim was granted, effective November 28, 2006. Hence, the notice requirements of 38 U.S.C.A. § 5103(a) have been met since the Veteran's claim was successfully granted. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The RO properly issued a statement of the case in September 2010 addressing the effective-date issue. As to the duty to assist, VA did not obtain any records or provide an examination in connection with the claim for entitlement to an earlier effective date. The determination of whether an earlier effective date is warranted in this case is based upon evidence already in the claims file. Thus, the fact that VA did not obtain any evidence or provide the Veteran with a VA examination is not prejudicial to the Veteran. As noted above, in May 2011, the Veteran had a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned fully explained the issue involved. See transcript on page 2. While the undersigned did not suggest the submission of evidence that may have been overlooked, the Board finds there was no prejudice, as it is clear the Veteran has a full understanding of the evidence needed to establish an earlier effective date for the compensable rating. Specifically, the Veteran argues that he was not properly notified of the January 1995 rating decision, which assigned him a noncompensable rating for the right knee. Thus, he alleges that such claim has been pending and that he has had symptoms in his right knee since 1994, which, if facts were accurate, would establish a basis of granting a compensable rating since 1994. This is the kind of evidence needed to establish an earlier effective date for a compensable rating. Thus, the Veteran has actual knowledge of the evidence that was lacking in his case. Therefore, to the extent that the Board did not meet all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant, there has been no prejudice. The Board also notes that during the hearing held in May 2011 the Veteran requested a copy of his claims file so he could review the records pertinent to the rating decision that was made in 1995. The Board notes, however, that a copy of the file was previously provided to the Veteran. See RO letter dated in September 2010 ("We have processed the request for copies of your C file that you requested through a Privacy Act request and are submitting it for your review."). That letter noted that 1978 copies of records were enclosed. The Board concludes that deciding the issue on the merits at this time is appropriate. II. Analysis The Veteran asserts he warrants an effective date earlier than November 28, 2006, for the award of a compensable rating for right knee disability, status post meniscus tear. He states that he was never notified of the January 1995 rating decision, which assigned him the noncompensable rating, which means that his claim has remained pending since that time. He believes that because he has had pain in his right knee since service discharge, he is entitled to a compensable rating since 1994. The Board will lay out a factual background to assist the Veteran with an understanding of the facts in the case. On July 27, 1994, VA received a completed VA Form 21-526, Veteran's Application for Compensation or Pension, from the Veteran, which indicated that the Veteran was seeking compensation benefits for a knee condition. See item # 17. The Veteran indicated on the application that he lived in Studio City, California. In August 1994, the VA Medical Center contacted the Veteran and informed him he had two examinations scheduled on September 8, 1994, and one scheduled on September 22, 1994. The address on the notification letter is the same address shown in the VA Form 21-526. The envelope shows that the Post Office wrote to return to sender because there was "No forward order on file" and it was "unable to forward." In a January 1995 rating decision, the RO granted service connection for right knee condition, status post meniscal tear and assigned a noncompensable rating. The rating specialist wrote the following as to the award of service connection: The [V]eteran was seen 10-89 with complaint of right knee pain when running, marching and standing. The [V]eteran was diagnosed with medial meniscal tear. [Service treatment records] show on 2-90, the [V]eteran complained of pain to the right knee. The [V]eteran was seen on multiple occasions with complaint of right knee pain. Records dated 4-90 show the [V]eteran was treated for right knee patella femoral pain. [Service treatment records] dated 10-93 show the [V]eteran was treated for complaint of exacerbation of an old injury while playing basketball. During treatment, the [V]eteran stated that "knee is really no problem." The [V]eteran did not report to the scheduled VA[ examination]. Service connection is granted for right knee condition as the evidence shows the onset of the condition(s) during military service. Disabilities of the musculoskeletal system result in anatomical damage, functional loss and evidence of disuse, and/or abnormal excursion of movement. In determining evaluations for disability involving the knee, consideration is given to objective evidence of limitation of flexion and extension, subluxation, lateral instability, painful motion, weakness and radiological findings demonstrating joint abnormality. Clinical evaluation of the right knee shows normal motion, no evidence of pain or crepitance on movement, no joint deformity, no swelling, no atrophy, no instability, and no circulatory disturbances. There are no findings of impairment of the knee which meet the requirements for a compensable evaluation. Accordingly, a noncompensable evaluation is assigned. See rating decision on page 2. The notification letter is not in the claims file. There is a VA Form 21-8947, Compensation and Pension Award, which shows the same address on the VA Form 21-526, Veteran's Application for Compensation or Pension. Under the Remarks section, there is a typewritten note of "Dictated Letter Required." A handwritten note shows "Per rating. Le[tter] attached." This was entered on February 7, 1995. On November 28, 2006, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, wherein he stated he wanted to amend his claim for service-connected disability to "now include Right Knee Problems." He wrote he had undergone surgery and asked that VA obtain the medical records. Private medical records obtained show that the Veteran was seen in February 2000 and the examiner noted this was the first visit from the Veteran, who wanted to establish health care with this office. The examiner noted that the only significant health problem was that the Veteran had been in a motor vehicle accident in August 1998, when he was struck from behind and pushed into oncoming traffic, causing a head-on collision. The examiner noted the Veteran reported he suffered a right knee contusion and other injuries (forehead contusion, rib contusion, and right thigh bruise). Examination of the lower extremities revealed mild crepitance of both knees with flexion and extension but no joint effusion. The examiner entered an impression of intermittent knee pain, which he noted the Veteran reported was evaluated in the Marines and felt to be patellofemoral joint dysfunction. A February 2006 private medical record shows that the Veteran reported he had had right knee pain intermittently since a fall at work in December 2005. He reported having pain in his right knee on that day. The examiner stated there was no ecchymosis or erythema. There was tenderness posteriorly behind the patella with full range of motion. Sensation was intact, and there was no swelling. Strength was 5/5. A June 2006 private medical record shows the Veteran reported that while carrying a ladder, he felt pain in his knee and heard a "pop" sound. The examiner noted, "This is the same as has happened in a previous incident dating back to an injury in Feb. 2006. It has occurred multiple times since but I have not seen a doctor for it since Feb. 2006." The Veteran was seen that day and the examiner noted that the Veteran was being seen for a "new injury to his right knee." The examiner noted the Veteran injured his right knee at work "back in February, ... [when] he was carrying two heavy medical boxes and slipped on ice and twisted his knee as he slipped forward." The examiner noted there was no swelling in the front of the knee, but some swelling in the back of the knee at the time of the injury. It had gradually improved, but he still had occasional episodes of the knee buckling on him. The examiner noted the Veteran denied falling because of the knee, but that the buckling happened regularly. The Veteran reported the buckling happened when he was carrying the ladder. The examiner added, 'He denies any previous problems with the knee." Physical examination revealed no effusion and full flexion and extension. Ligaments were stable, although the examiner noted the Veteran was not fully relaxed for the ligamentous examination. The examiner found no evidence of ligamentous laxity. Weight bearing pivoting testing caused discomfort along the medial joint line. The assessment was possible right knee medial meniscal tear." In July 2006, the Veteran underwent an arthroscopy and limited synovectomy. The examiner noted that the indications for such surgery were persistent pain in the knee and medial thigh following "an injury several months ago." The postoperative diagnoses were intact medial meniscus and articular surfaces with the lateral meniscus and anterior cruciate ligament also intact; extensive synovitis of the anterior knee, and small chondral flap of the lateral aspect of the medial femoral condyle. A November 1, 2006, private medical record shows the examiner saw the Veteran for recurrent right knee pain. The examiner noted he had last seen the Veteran approximately two and one-half months ago, which was one month after the right knee arthroscopy. The Veteran reported that his knee had done "very well" for the past couple of months and that he had been able to do "all of his normal activities." However, he noted that one-to-two weeks ago, he started to develop some discomfort laterally, especially after his knee was bent while riding his motorcycle. The examiner noted there was "very small knee effusion." There was tenderness along the anterolateral joint line. There was palpable plica laterally that snapped with flexion and extension. The examiner noted the Veteran had good motion and no signs of infection. In a letter dated January 10, 2006 (but apparently submitted by the Veteran in 2007) the Veteran conceded that he "I moved around a lot when my enlistment ended... so I may not have received any mail that the VA sent me. In a February 2008 rating decision, the RO granted a 10 percent rating for right knee condition, status post meniscal tear, effective November 28, 2006. In an April 2009 rating decision, the RO increased the rating to 20 percent, effective November 28, 2006. The Veteran states that he warrants an earlier effective date for the compensable rating for the service-connected disability. At the September 2011 hearing before the undersigned, the Veteran testified that he submitted his claim for compensation benefits while still in Studio City, California, but then moved back to the Buffalo, New York, area within six months. He was asked if he informed the VA Medical Center that he was moving, and he responded he had not. The Veteran noted he was receiving benefits from the GI Bill and that that part of VA knew where he was. He stated he assumed that if one part of VA knew where he was, other parts knew as well. The Veteran stated he was given a noncompensable rating for the right knee because of his failure to show up for the VA examination. He stated that the RO should have at least rated him based upon his service treatment records. The Veteran stated that the Decision Review Officer told him that his pain alone was worth 10 percent. He claims that the only reason he was given a noncompensable rating was because of his failure to show up for the VA examination. The Veteran expressed confusion as to the fact that the VAMC letter did not reach him, when he was, in fact, receiving mail at that address at that time. He stated he never received a copy of the rating decision. The Veteran reported he was having symptoms involving his right knee at service discharge, which symptoms had begun in 1989. He stated the pain had been constant from 1989 until service discharge. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); see 38 C.F.R. 3.400. An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2); see Harper v. Brown, 10 Vet. App. 125, 126 (1997). Under 38 C.F.R. § 3.155(a) (2012), the veteran or a representative of the veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific. Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Under 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of claim. Id. When the evidence is from a private physician, the date of receipt of such evidence will be accepted when the evidence furnished by or on behalf of the claimant is within the competence of the physician and shows the reasonable possibility of entitlement to benefits. Id. at (b)(2). The Board has carefully reviewed the evidence of record and finds the preponderance of the evidence is against an effective date earlier than November 28, 2006, for the award of a compensable rating for right knee disability, status post meniscus tear. On that date, the Veteran submitted an informal claim for increase for the right knee disability. Initially, the Board will address whether the January 1995 rating decision became final. The Board concludes that the January 1995 rating decision did, in fact, become final in the absence of a notice of disagreement submitted within one year of the rating decision and the fact that no additional relevant evidence was received within one year of the rating decision. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.200, 20.202, 20.1103 (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242 (2010). While the notification letter is not in the claims file, there is a document that shows the address of record provided by the Veteran in his July 1994 VA Form 21-526, Veteran's Application for Compensation or Pension. On the VA Form 21-8947, it indicates that a letter was sent to the Veteran at the address of record he provided in his July 1994 application for compensation benefits. The presumption of regularity allows for VA to presume that the RO properly fulfilled its duty in sending a notification letter to the Veteran regarding the January 1995 rating decision at his last known address. The record indicates that the rating decision was mailed to the Veteran's address of record, and there is nothing in the claims file to indicate that the decision was returned as undeliverable. Thus, the Veteran is presumed to have received the January 1995 decision. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption of regularity to attach). The Veteran's allegation that he did not receive a copy of the January 1995 rating decision is insufficient to rebut the presumption of regularity. YT v. Brown, 9 Vet. App. 195, 199 (1996) (allegation that claimant did not receive a statement of the case is not the "clear evidence to the contrary" that is required to rebut the presumption of regularity that the notice was sent." Id. The Board is aware that the August 1994 letter was returned as undeliverable but that the notification of the January 1995 rating decision was not returned. It is possible that at the time of the notification of the rating decision, a forwarding address may have been submitted to the Post Office. The Veteran has alleged that because the August 1994 notice of the VA examination was returned as undeliverable, VA should have known he moved. However, it is the claimant's responsibility for keeping VA informed of his whereabouts. The Veteran has stated that he was still at the address of record at the time the August 1994 letter from the VAMC was sent to him, and he has no idea why he did not receive this letter. Regardless, such fact is not relevant, as his failure to report for a VA examination was not the basis of the RO's decision to assign the noncompensable rating. On this note, the Veteran has alleged that the RO assigned him a noncompensable rating solely because he failed to appear for the VA examination. That is an inaccurate statement, as the rating decision, quoted in full as to the RO's discussion regarding the right knee, shows the noncompensable rating was assigned based upon the evidence of record. In other words, there is no indication that the RO denied a compensable rating because of the Veteran's failure to appear for the VA examination. Rather, the RO merely noted that the Veteran did not appear for the VA examination and then made a finding that the service treatment records established that the Veteran's right knee did not meet the criteria for a compensable rating and supported such conclusion by discussing the findings made in the service treatment records. Thus, the RO considered the evidence of record in determining the appropriate evaluation. See 38 C.F.R. § 3.655(b) (in cases of original claims for service connection, if claimant fails to appear for VA examination without good cause, claim shall be decided on the evidence of record). With respect to the Veteran's contention that he notified VA of his new address in connection with a claim for education benefits, the Board notes that there is no evidence to support that assertion. The claims file does not contain any indication that the Veteran applied for or was awarded education benefits around the time of the January 1995 decision, or that the Veteran notified VA of a change of address in connection with a claim for VA education benefits. In fact, the July 1994 claim for compensation benefits notes that he denied having filed any claim for Veterans Educational Assistance. Regardless, as discussed above, the notice of the rating decision was mailed to the Veteran and was not returned, so there is a presumption that he received it. The Board notes that the Veteran had raised the issue of clear and unmistakable error in the January 1995 rating decision, but then decided that he did not want to pursue that allegation. See June 2010 VA Form 21-4138, Statement in Support of Claim. The Veteran has stated that because he had informed one area of VA that he had moved, the RO should have attempted to contact him when it learned that the Veteran had failed to appear for the VA examination due to VA's inability to find him. The Board has gone through the claims file to see if the Veteran notified VA that he had moved to New York. There is nothing in the claims file showing the Veteran contacted VA with a new address in New York within one year following service discharge and notified VA of such move. At the time of the January 1995 rating decision, the only address of record was that provided by the Veteran in the VA Form 21-526, Veteran's Application for Compensation or Pension he submitted in July 1994-the same month he was discharged from service. In the returned letter to the VA Medical Center, VA was informed that the Veteran had moved and that the Post Office had no forwarding address. Had the returned envelope indicated that the forwarding address had expired, there may have been a duty for VA to at least attempt to learn of the possible forwarding address. However, the envelope VA had in its possession indicated there was no forwarding address, and thus VA properly sent the notice of the January 1995 rating decision to the Veteran's last known address. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (holding that "[i]n the normal course of events, it is the burden of the veteran to keep ... VA apprised of his whereabouts."). In this case, the Board finds as fact that it was not the responsibility of the Secretary to act as a private detective to investigate the whereabouts of the Veteran. Thus, the Board concludes that the January 1995 rating decision became final when the Veteran did not timely submit a notice of disagreement as to the assignment of the noncompensable rating and there was no additional relevant evidence submitted within one year of the January 1995 rating decision. Thus, a compensable rating is not warranted back to 1994. The next time the Veteran submitted a claim for increase was when he submitted an informal claim, which was received on November 28, 2006. The Board finds that the preponderance of the evidence is against an effective date earlier than November 28, 2006, for the award of a compensable rating for right knee disability, status post meniscus tear. While there is evidence in the claims file of worsening right knee symptoms within one year of the November 2006 informal claim for increase, the Board finds that the preponderance of the evidence is against a finding that such increase is due to the service-connected disability, but rather multiple post service injuries, which is explained below. The Board has laid out the facts above, which show that the Veteran sustained injuries to his right knee in December 2005, February 2006, and June 2006 during his work as a firefighter. While there was thought to be a meniscal tear based upon the symptoms the Veteran was experiencing and a July 2006 MRI report, the July 2006 arthroscopy revealed there was no meniscal tear. Thus, while the Veteran's service-connected disability includes the characterization of "status post meniscal tear," the more probative evidence in 2006 shows there was no meniscal tear. Additionally, in a June 29, 2006, private medical record, the examiner made a specific finding that prior to these 2006 injuries to the Veteran's knee, the Veteran "denies any previous problems with the knee." This would indicate that the Veteran was not having knee symptoms prior to the injuries he sustained in late 2005 and in 2006, which the Board finds supports its conclusions that any symptoms the Veteran was experiencing in 2005 and 2006 were due to the work-related injuries he sustained during that time period, since the Veteran denied any prior problems with the right knee. The Veteran's own statements further support the Board's conclusions that any increased symptoms demonstrated within one year of the Veteran's November 2006 claim are not due to the service-connected disability but rather work-related injuries. The Board is aware that the RO did not to distinguish between the symptoms in the right knee related to work-related injuries and any symptoms the Veteran has as a result of knee pain he had in service in the late 1980s and early 1990s. The issue before the Board is whether the Veteran is entitled to an earlier effective date for the award of a compensable rating, which, for the reasons stated above, the Board finds that the preponderance of the evidence is against the award of a compensable rating prior to the date of claim. Stated differently, the Board does not find that there were increased symptoms within one year of the date of claim that are attributable to the service-connected disability, but rather increased symptoms attributable to work-related injuries that are separate from the service-connected disability. Again, this conclusion is based, in part, on the Veteran's own statements in June 2006 that he did not have problems in his right knee prior the injuries he sustained since February 2006. The Veteran did not receive any VA treatment for his right knee in the years following service discharge until after his current claim for increase. Thus, the application of 38 C.F.R. § 3.157 is not warranted. To the extent that the Veteran reported knee problems in service at the time he was treated in February 2000, this record was not submitted until the current claim for increase. Thus, this private medical record cannot establish an earlier effective date for at least two reasons. One, this record was submitted after the November 2006 claim, and under 38 C.F.R. § 3.157, the date it was received is the controlling date. Two, this date is well before one year prior to the November 2006 informal claim for increase, and cannot establish an earlier effective date based upon it being factually ascertainable that an increase in the disability occurred within one year of the November 2006 claim. Specifically, the Court, the U.S. Court of Appeals for the Federal Circuit, and VA's General Counsel have interpreted the provisions of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 as meaning that if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase, however, occurred more than one year prior to the claim, the increase is effective the date of claim. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) ("It is clear from the plain language of 38 U.S.C. § 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); 38 U.S.C.A. § 5110(b)(2); Harper, 10 Vet. App. at 126-27; 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 ((Sept. 23, 1998); see also Scott v. Brown, 7 Vet. App. 184, 189 (1994) (under the terms of section 5110(b)(2), the effective date is either the date of the claim or "some date in the preceding year if it were ascertainable that the disability had increased in severity during that time"). For all the reasons stated above, the Board finds that the preponderance of the evidence is against an effective date earlier than November 28, 2006, for the award of a compensable rating for right knee disability, status post meniscus tear. The benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107. ORDER Entitlement to an effective date earlier than November 28, 2006, for the award of a compensable rating for right knee disability, status post meniscus tear is denied. ________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs