Citation Nr: 18143777 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-12 135A DATE: October 22, 2018 ORDER A separate rating of 20 percent, but no higher, for a left knee meniscal disorder prior to September 9, 2013, is granted. REMANDED Entitlement to a rating in excess of 30 percent for limitation of motion of the left knee prior to September 9, 2013, is remanded. Entitlement to an initial rating in excess of 20 percent for left knee instability prior to September 9, 2013, is remanded. Entitlement to a rating in excess of 30 percent for status post total left knee replacement as of November 1, 2014, is remanded. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether a left meniscal disorder results in frequent episodes of locking, pain, and effusion into the joint prior to September 9, 2013. CONCLUSION OF LAW The criteria for entitlement to a separate rating of 20 percent for a meniscal disorder of the left knee prior to September 9, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5258. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1977 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran, in Des Moines, Iowa, testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. A September 2011 rating decision increased the left knee rating to 30 percent based on limitation of flexion and assigned a separate 20 percent rating based on instability, both ratings effective October 4, 2010. VA received a claim for an increased rating for the left knee in January 2013. On September 9, 2013, the Veteran underwent a total left knee replacement. An October 2013 rating decision re-evaluated limitation of motion under Diagnostic Code 5055 for a total knee replacement and assigned a 100 percent rating for the total left knee replacement as of September 9, 2013, and a 30 percent rating for residuals of the procedure as of November 1, 2014. The Veteran is no longer in receipt of the 20 percent rating for left knee instability as of September 9, 2013, the date of the total knee replacement. Entitlement to a separate rating for a left meniscal disorder prior to September 9, 2013 Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 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 resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, a claimant who has both limitation of flexion and limitation of extension of the same leg may be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (Oct. 6, 2004). Additionally, a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (Oct. 22, 1998); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (Dec. 1, 1997); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The diagnostic codes for the knees are as follows: 5256 (ankylosis); 5257 (recurrent subluxation or lateral instability); 5258 (dislocated semilunar cartilage); 5259 (removal of semilunar cartilage); 5260 (limitation of flexion); 5261 (limitation of extension); 5262 (impairment of tibia and fibula); and 5263 (genu recurvatum). Prior to September 9, 2013, the Veteran was in receipt of a 30 percent rating for limitation of extension of the left knee (evaluated under Diagnostic Code 5261) and a 20 percent rating for instability of the left knee (evaluated under Diagnostic Code 5257). As discussed below, entitlement to increased ratings for limitation of motion and instability are being remanded for further development. However, after reviewing the relevant medical and lay evidence, the Board finds that a separate rating of 20 percent is warranted for a left meniscal disorder prior to September 9, 2013, under Diagnostic Code 5258. Under Diagnostic Code 5258, the sole and maximum 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5258. An April 2013 VA examination indicates that the Veteran had a left meniscal tear with frequent episodes of locking, pain, and joint effusion. 04/16/2013, C&P Exam. The Board finds that these symptoms are not compensated by the ratings assigned under Diagnostic Codes 5261 and 5257 for limitation of extension and instability. Accordingly, the Board finds a separate rating of 20 percent is warranted for a left meniscal disorder, as the competent and probative evidence is at least in equipoise as to whether the Veteran’s left knee disability resulted in frequent episodes of locking, pain, and joint effusion prior to September 9, 2013. See 38 C.F.R. § 4.71a, DC 5258. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for limitation of motion of the left knee prior to September 9, 2013, is remanded. 2. Entitlement to an initial rating in excess of 20 percent for left knee instability prior to September 9, 2013, is remanded. The Veteran indicated that he receives continuing VA treatment for the left knee, including a left knee surgery in December 2012, as well as private treatment from Orthopedic Specialists. Outstanding VA treatment records and identified private records should be obtained and associated with the virtual file. 3. Entitlement to rating in excess of 30 percent for status post total left knee replacement as of November 1, 2014, is remanded. A March 2015 VA examination is inadequate because the Board is unable to determine whether the examiner’s inability to offer an opinion as to whether pain, fatigue, weakness, and/or instability significantly limit range of motion of the left knee during flare-ups and/or after repetitive use over time is due to a deficiency in the examiner, as opposed to in the knowledge of the medical community more generally. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the periods of July 2009 to August 2015, and January 2018 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for Orthopedic Specialists. Make two requests for the authorized records from Orthopedic Specialists, unless it is clear after the first request that a second request would be futile. 3. After completing directives #1 and 2, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s left knee disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time in terms of degrees of motion loss. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living. (CONTINUED ON THE NEXT PAGE)   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel