Citation Nr: 1800358	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  13-18 540	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an increased rating for a right knee disability, currently evaluated as 10 percent disabling on the basis of limitation of flexion and 10 percent on the basis of limitation of flexion.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

T. Davis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1983 to April 1984; and from January 1986 to August 2001. 

This appeal to the Board of Veterans' Appeals (Board) arose from a September 2011 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas that continued a 10-percent rating for the service connected right knee disability.

The Veteran testified at a Board hearing via video conference in October 2015 before the undersigned. 

In March 2016, the Board remanded this appeal to afford the Veteran a new VA examination as during the above referenced hearing, he testified that his symptom had worsened.

A May 2016 rating decision granted a separate 10 percent rating under Diagnostic Code 5261, for limitation of extension, effective August 27, 2010.

The issues of entitlement to increased ratings for the right knee disability on the basis of limitation of motion are REMANDED to the agency of original jurisdiction.  The Veteran will be advised if he needs to take further action.  


FINDING OF FACT

The residuals of the Veteran's post-operative right knee degenerative joint disease with scaring include symptomatic removal of the semilunar cartilage; but not instability or subluxation or large or symptomatic scars.


CONCLUSION OF LAW

The criteria for entitlement to a separate rating of 10 percent for post-operative right knee disability on the basis of symptomatic removal of the semilunar cartilage have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260, 5257, 5259 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Applicable Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities from the same injury if the symptomatology for the conditions is not duplicative or overlapping. 38 C.F.R. § 4.14; see Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009).

Where entitlement to disability compensation has already been established and an increase in the assigned rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

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. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997).

The record in this case shows that the Veteran has undergone partial medial meniscectomy of the right knee and has residual pain.  Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage.  This code generally does not overlap with those pertaining to limitation of motion.  Lyles v. Shulkin, No. 16-0994 (Nov. 29, 2017).  Accordingly, a separate 10 percent rating is warranted under Diagnostic Code 5259.

Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability. A 20 percent rating is assigned when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 

An October 2010 VA examination report notes the Veteran's reports of pain, stiffness, swelling, giving way, locking, and lack of endurance. Upon physical examination, no instability or subluxation was found.

The Veteran underwent another VA examination in October 2102. At the examination the Veteran used a cane and knee brace and reported sitting being limited to 20 minutes due to stiffness. He said that his ability to walk distances varied.  There was again no finding of instability or subluxation. 

During the October 2015 hearing, the Veteran testified that his would knee would give out, causing him to fall. See hearing transcript at 4. He also testified that his right knee had meniscus and a cartilage tears. See hearing transcript at 9.He further testified that his arthritis had gotten "really bad." Id

The Veteran underwent an additional right knee VA examination in March 2016. It was noted that he had undergone a partial medial meniscectomy for loose body removal.  Recurrent effusion was present, but there was no instability, subluxation or dislocation.  Specific testing for instability was all normal.

The Veteran has provided competent reports that his knee gives way. These reports suggest the presence of instability.  Examinations have; however, revealed no instability or subluxation with all testing being normal; and the medical professionals providing the examinations all opining that there was no history of instability or subluxation.  

The medical opinion and examination results are more probative and credible than the Veteran's reports made during the course of his application for compensation.  Accordingly, the evidence is against the grant of a separate rating under Diagnostic Code 5257.

The Board also finds that the Veteran is not entitled to higher or separate ratings under Diagnostic Codes 5256, 5258, or 5259 because his right knee does not have ankyloses, a dislocated semilunar cartilage with frequent episodes of "locking" pain and effusion, or symptomatic removal of the semilunar cartilage, respectively.

The evidence does not show episodes of locking, pain, and effusion due to dislocated semilunar cartilage, as are required for a separate rating under Diagnostic Code 5258. Therefore, the Veteran is not entitled to a separate rating under Diagnostic Code 5258 or 5259 during the appeal period. 

As there is no evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum, higher or separate ratings under Diagnostic Codes 5256 and 5263 are not warranted for the right knee disability at any point during the appeal period. 

Further, as the surgical scars associated with the Veterans right knee disability have not been shown to be painful, unstable, or exceed an area of at least 6 square inches (39 sq. cm.), see October 2012 and March 2016 reports, separate ratings for the scars are not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. 


ORDER

Entitlement to an increased (separate) 10 percent rating for post-operative right knee degenerative joint disease with scaring on the basis of symptomatic removal of the semilunar cartilage is granted.


REMAND

At the March 2016 examination the examiner noted the Veteran's reports of flare-ups, but professed an inability to say whether there was significant functional limitation without resort to speculation because the Veteran was not being examined during a flare up.  This is precisely the language the Court has recently found to be inadequate.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Accordingly, a new examination is needed.

The appeal is REMANDED for the following:

1.  Afford the Veteran a new right knee examination to assess limitation of motion.  The examiner should report the ranges of flexion and extension.  The examiner should also report any additional limitation of motion due to weakness, fatigability, incoordination, pain or flare ups in degree of additional limitation.

The examiner should record the Veteran's reports of additional limitation during flare-ups and estimate in degrees the amount of additional limitation of motion reported by the Veteran.  The examiner should opine whether the Veteran's reports are consistent with the disability found on examination.

2.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case; then return the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs