Citation Nr: 1751834 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-20 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a separate compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259, for postoperative left meniscectomy residuals for the period prior to April 2, 2010 and after April 27, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Jones, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to January 1977. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In a January 2016 decision, the Board, in pertinent part, denied a rating in excess of 10 percent prior to April 28, 2014, and in excess of 20 percent thereafter for degenerative joint disease of the left knee based on limitation of motion, pursuant to Diagnostic Codes 5003, 5010, 5260, 5261; denied a rating in excess of 10 percent for left knee meniscectomy residuals other than limitation of motion, prior to April 2, 2010, and from April 28, 2014, pursuant to Diagnostic Codes 5257-5259; and granted a 10 percent rating for left knee meniscectomy residuals other than limitation of motion for the period from April 2, 2010, to April 27, 2014, pursuant to Diagnostic Code 5259. In addition, the Board remanded the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) for due process considerations, including the issuance of a Supplemental Statement of the Case (SSOC). The Veteran appealed the Board's January 2016 decision to the U.S. Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in May 2017, the Veteran's then-attorney and a representative of VA's General Counsel filed a joint motion for partial remand (JMPR) and a Joint Motion to Terminate the Appeal. In a May 2017 order, the Court granted the motions, vacated the Board's January 2016 decision with regard to the issue addressed herein, and remanded the matter for readjudication. The Board notes that following its January 2016 remand of the issue of entitlement to TDIU, in a June 2017 rating decision, the RO granted entitlement to a TDIU, effective April 28, 2013. The record does not show, nor does the appellant contend, that he is unemployable due solely to his service-connected right knee disability. See e.g. June 2014 VA Form 21-8940, alleging TDIU due to service-connected low back, knee, and ankle disabilities. Thus, absent a notice of disagreement with the effective date assigned by the RO for the award of TDIU, this matter is no longer before the Board. FINDING OF FACT Prior to April 2, 2010 and after April 27, 2014, the appellant's service-connected left knee disability did not exhibit symptoms that are not already compensated by schedular ratings under Diagnostic Codes 5003, 5010, 5260, 5261, 5257. CONCLUSION OF LAW The criteria for a separate compensable rating for postoperative left meniscectomy residuals under 38 C.F.R. § 4.71a, Diagnostic Code 5259, prior to April 2, 2010 and after April 27, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Law Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59 (2017). Pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). It is, however, VA's policy to grant at least the minimal compensable rating for actually painful motion. 38 C.F.R. § 4.59. The Board observes that there are several diagnostic codes used to evaluate disabilities of the knee. As detailed herein, the Veteran's left knee increased rating claim was adjudicated by the Board in a January 2016 rating decision. As the JMPR only expressed disagreement with the Board's determination regarding whether a separate compensable rating under Diagnostic Code 5259 was warranted for the period in question, this decision will only discuss the application of the referenced diagnostic code. Under Diagnostic Code 5259, a 10 percent rating is assigned for removal of semilunar cartilage, symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Factual Background The Veteran underwent a VA examination in November 2007. At that time, he reported increased pain and decreased range of motion of the left knee along with weakness, giving way, fatigability, and lack of endurance. There was also intermittent swelling, but no heat, redness, stiffness, or locking. He denied left knee flare-ups of left knee symptoms. On examination, the Veteran walked with a cane and a limp favoring the left side. Inspection of the knee revealed no obvious deformities. There was no effusion or edema. There was medial and joint line tenderness and a lot of crepitus noted with motion testing of the knee. The knee was determined to be stable. Range of motion testing revealed extension to 0 degrees and flexion to 110 degrees, with pain at the endpoint of flexion. There was no loss of motion with repetition. On VA examination conducted in April 2014, the Veteran reported that he had experienced less stability of the knee since the 2010 VA examination, however, his pain remained the same. He also reported that his knee would buckle and go sideways at times, particularly on stairs. Swelling was noted, but the appellant denied flare ups of left knee symptoms. Range of motion testing revealed flexion to 80 degrees with the onset of pain at 70 degrees and extension to 15 degrees with the onset of pain at 15 degrees. There was no change in range of motion following repetitive testing. However, there was functional loss in the form of weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and weight-bearing. There was medial-lateral instability of the left knee. There was no evidence of patellar subluxation or dislocation. The examiner noted a meniscal tear with frequent episodes of joint pain. He indicated that symptoms of pain and progressive instability were residuals of the meniscectomies. A final examination was provided in July 2016. The Veteran reported that he had 3 previous knee surgeries and was making preparations for a knee replacement. He reported constant pain in the knee and flare-ups when "living, standing, or walking." However, he denied having any functional loss or impairment of the joint. On range of motion testing, the Veteran had flexion from 10 to 60 degrees and extension from 60 to 10 degrees. There was no additional limitation of motion following repetitive testing. The examiner determined that the range of motion contributed to functional loss as it impaired the Veteran's gait, causing him to limp, favoring the left. He also noted that there was pain on flexion and extension but it did not result in or cause functional loss. There was pain on weight bearing and localized tenderness or pain on palpitation of the joint or associated soft tissue at the medial and lateral knee. There was also evidence of crepitus. Muscle atrophy was also noted in the lower left extremity due to the Veteran's back and knee conditions. With regard to residuals of the meniscectomies and other knee surgeries, the examiner noted that such residuals consisted of pain and loss of motion. Analysis After reviewing the evidence, the Board finds that the preponderance of the evidence is against the assignment of a separate compensable rating under Diagnostic Code 5259 for the periods prior to April 2, 2010 and after April 27, 2014 for the Veteran's postoperative left meniscectomy residuals. At the outset, the Board notes that during the periods on appeal, the Veteran's left knee disability has been awarded separate ratings under Diagnostic Codes 5257 for instability and 5260, 5261-5010 based arthritis with limited motion. The ratings assigned under the criteria for evaluating arthritis, limitation of motion, and "other impairment of the knee" included consideration of the symptoms of instability, weakness, tenderness, pain, decreased range of motion, fatigability, intermittent swelling, interference with weight bearing following repetitive testing, and crepitus. For example, for the period prior to April 28, 2014, left knee range of motion testing showed full extension and flexion limited to, at worst, 105 degrees. Although these findings did not meet the criteria for a compensable rating under Diagnostic Codes 5260 or 5261, a 10 percent rating was nonetheless assigned with consideration of additional symptoms which produced functional loss, including weakness, tenderness, pain, fatigability, intermittent swelling, interference with weight bearing, and crepitus. Similarly, from April 28, 2014, the left knee disability was manifested by no more than slight instability, noncompensable limitation of flexion, and extension limited to 15 degrees (as shown on the April 2014 examination) and 10 degrees (as shown on the July 2016 examination). Although these findings do not meet the criteria for a 20 percent rating based on limitation of motion for the entire period, a 20 percent rating was nonetheless assigned from April 27, 2014, with consideration of the additional symptoms which produced functional loss. Indeed, the Board expressly found that the schedular ratings assigned included the Veteran's left knee symptoms of pain and "other factors, symptoms and effects" which produced functional loss, as contemplated by 38 C.F.R. §§ 4.40, 4.45, 4.59. Based on a review of the record in its entirety, the Board therefore finds that to award a separate rating under Diagnostic Code 5259 for symptomatic removal of the semilunar cartilage, in addition to the ratings assigned under Diagnostic Codes 5257 and 5261-5010 for the same symptoms associated with the meniscectomies would constitute impermissible pyramiding. In the JMPR, it was asserted that left knee symptoms such as weakness, tenderness, giving way, increased pain, decreased range of motion, fatigability, intermittent swelling, tenderness, interference with weight bearing following repetitive testing, and crepitus were noted in the evidence of record but were not considered by the Board in its preceding decision. However, for the reasons discussed above, the Board finds that the symptoms reported in the record and in the JMPR are contemplated in the ratings already assigned under the criteria for instability, limitation of motion, and functional loss. Again, to compensate those identical symptoms under Diagnostic Code 5259 would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Thus, a separate compensable rating under Diagnostic Code 5259 is not warranted for the periods prior to April 2, 2010 and after April 27, 2014. In sum, the Board finds that the preponderance of the evidence is against the assignment of a separate compensable rating under Diagnostic Code 5259 for the periods prior to April 2, 2010 and after April 27, 2014 for the Veteran's postoperative left meniscectomy residuals. As the preponderance of the evidence is against the claim the benefit of the doubt rule is not applicable and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to a separate compensable rating for postoperative left meniscectomy residuals other than limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5259, prior to April 2, 2010 and after April 27, 2014 is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs