Citation Nr: 18155841 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 09-22 919 DATE: December 6, 2018 ORDER An initial rating higher than 10 percent for right knee meniscal tear with partial anterior cruciate ligament (ACL) injury is denied. Prior to November 18, 2009, a separate 20 percent rating for dislocated semilunar cartilage is granted. From May 15, 2012, a separate 10 percent rating for right knee meniscectomy is granted. FINDINGS OF FACT 1. The Veteran’s right knee meniscal tear with partial ACL injury is not manifested by moderate instability or recurrent subluxation. 2. Prior to November 18, 2009, the Veteran’s right knee disability included dislocated semilunar cartilage with pain, locking and effusion. 3. On November 18, 2009, the Veteran underwent a right knee meniscectomy but developed symptoms of locking as of May 15, 2012. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for right knee meniscal tear with partial ACL injury have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5257. 2. Prior to November 18, 2009, the criteria for a separate 20 percent rating for right knee dislocated semilunar cartilage have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, DC 5258. 3. From May 15, 2012, the criteria for a separate 10 percent rating for right knee meniscectomy have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, DC 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1999 to April 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision, which granted service connection and assigned a 10 percent rating under DC 5257 for the Veteran’s right knee disability effective from April 6, 2004. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in May 2012. In May 2013, the Board denied a higher rating under DC 5257 but granted a separate 10 percent rating for arthritis under DC 5010-5260. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a June 2014 Joint Motion for Remand (JMR), the Court remanded the matter back to the Board, though the separate rating for arthritis was not addressed. Following additional development, the Board denied a rating higher than 10 percent again in April 2017. The Veteran again appealed to the Court, which remanded the matter back to the Board pursuant to a December 2017 JMR. That JMR specified that the Veteran’s representative had requested copies of documents contained in the claims file as well as an extension of time to submit additional evidence and argument, and that these requests were not addressed by the Board when it issued its April 2017 decision. Notably, a September 2018 Report of Contact form indicates the Veteran’s representative had received all the relevant documents, had nothing further to submit, and was awaiting adjudication of the Veteran’s appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 1. DC 5257 The Veteran’s right knee disability is currently assigned a 10 percent rating under DC 5257. Under this code, ratings of 10, 20 and 30 percent are assigned for slight, moderate and severe recurrent subluxation or lateral instability, respectively. Descriptive terms such as “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The Board finds that a rating higher than 10 percent is not warranted because “moderate” instability has not been demonstrated. A March 2005 VA examiner noted mild instability on examination. VA records dated December 2005 show the Veteran reported some shifting in the knee, with the absence of any mediolateral laxity on examination. During a May 2006 VA examination, the Veteran reported giving way of the knee. Additional records from June 2006 show the Veteran had a “sense” of instability with the right knee giving way, but the ligaments were normal with no instability on examination. Records from May 2010 also show no laxity on examination, and the Veteran reported that right knee symptoms had improved. During his May 2012 hearing, the Veteran reported having to “re-position” himself but denied any falls. VA examinations in August 2012 and October 2012 documented normal stability with no history of recurrent subluxation or dislocation. The Veteran did report difficulty standing with prolonged periods due to instability. However, VA records from April 2013, June 2014 and August 2015 show the Veteran denied any “giving out” of the knee. In July 2016, the Veteran was noted to have some increased play in the joint. However, an October 2016 VA examination documented normal stability on examination with no history of recurrent subluxation or dislocation. In sum, the evidence documents objective findings of “mild instability” in 2005 and some play in the knee joint in 2016, with multiple other instances of normal stability testing. These do not rise to the level of “moderate” instability. The Veteran’s subjective reports include shifting of the knee in 2005, giving way in 2006, and difficulty standing for prolonged periods in 2012. These also do not rise to the level of “moderate” instability, particularly when viewed alongside the objective findings, the lack of any falls reported by the Veteran, and the extended period August 2012 through August 2015 in which he denied any giving out or recurrent subluxation or dislocation. The positive evidence of instability during the appeal period is adequately compensated by the current 10 percent rating. 2. DC 5258 As discussed, the Veteran is assigned ratings under DC 5257 (instability) and DC 5010 (arthritis and limitation of motion). The provisions of 38 C.F.R. § 4.71a do not expressly prohibit separate evaluations under DC 5257, DCs 5260/5261 (limitation of motion), and the “meniscal” codes (DCs 5258/5259). Lyles v. Shulkin, 29 Vet. App. 107 (2017). DC 5258 provides a single 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain and effusion into the joint. The Board finds that such a rating is warranted in this case prior to November 18, 2009. Initially, the Board notes that VA records from December 2005 include an MRI showing a tear of the posterior horn of the medial meniscus. However, additional records from January 2006 show the Veteran underwent a knee arthroscopy which was negative for a meniscal tear. Then, an MRI in April 2006 showed “increased signal” in the posterior horn of the medial meniscus versus a new tear, and an August 2009 MRI also showed a meniscal tear. The Board therefore finds that the Veteran had a torn meniscus for the period prior to November 18, 2009. With regard to symptoms, the Veteran reported locking and swelling in the knee during a March 2005 VA examination. VA records from December 2005, January 2006 and April 2006 documented a small effusion. In March 2007, the Veteran denied any effusion but reported a “catching” sensation with painful popping. In July 2009, he reported swelling after completing physical therapy. Based on the diagnoses of a meniscal tear, as well as complaints of locking and findings of effusion, the Board finds that a separate 20 percent rating for dislocated semilunar cartilage is warranted prior to November 18, 2009. 3. DC 5259 DC 5259 provides a single 10 percent rating for removal of semilunar cartilage that remains symptomatic. The Veteran underwent a partial medial meniscectomy on November 18, 2009. VA records from May 2010 and July 2010 show he reported that his symptoms had improved and that he was doing well. In July 2011, he denied any locking. However, during his May 2012 Board hearing, he reported experiencing locking 3 to 4 times a month. VA examinations in August 2012 and October 2012 noted frequent episodes of pain and locking, but not effusions. Records from April 2013 through August 2015 show the Veteran denied any locking. However, in June 2016, he reported that his knee locked up when he got up and unlocked after a few minutes. In July 2016, he again reported experiencing locking in the morning. An October 2016 VA examination indicated there was no history of recurrent effusion. Based on the above, the Board finds that a separate 10 percent rating is warranted under DC 5259 from May 15, 2012. Although the Veteran underwent his meniscectomy on November 18, 2009, there is no indication that it was symptomatic until May 15, 2012, when the Veteran testified at his Board hearing that he experienced locking. Subsequent records and examination reports also documented this symptom. The 20 percent rating under DC 5258 is not warranted, however, as the Veteran did not have effusions into the knee and multiple VA examinations documented a negative history of effusions. Additional Considerations In her July 2018 submission, the Veteran’s representative made additional assertions. First, she correctly noted that the November 2009 surgery was only a partial meniscectomy. She then argues that both DC 5258 and 5259 are applicable. To the extent that she is arguing that ratings under those codes should be assigned concurrently, the Board does not concur. First, as discussed above, following the Veteran’s partial meniscectomy in 2009, the evidence does not document the presence of effusion consistent with a 20 percent rating under DC 5258. Second, both codes address the semilunar cartilage, with DC 5258 specifying pain, locking and effusion as symptoms. DC 5259 only refers to a “symptomatic” removal of semilunar cartilage, but the Board reasonably infers that this refers to the same symptoms as those contemplated under DC 5258, but without the same frequency or totality of symptoms. As a result, concurrent ratings would be considered inappropriate pyramiding under 38 C.F.R. § 4.14. Second, she argues that a 20 percent rating is warranted under DC 5003, which addresses arthritis and limitation of motion, because the Veteran has left and right knee arthritis. However, the limitation of motion aspect of the Veteran’s right knee is not on appeal, nor is his left knee disability. Even if it were, the 20 percent rating under DC 5003 is assigned in the absence of limitation of motion, and the Veteran clearly has some limitation of motion of the right knee. Multiple VA records and examinations from June 2006 through July 2016 document flexion of 110 to 130 degrees, compared to the normal 140 degrees. See 38 C.F.R. § 4.71a, Plate II. Finally, she has argued that an extraschedular rating for the right knee is warranted, citing to employment and sleep problems associated with right knee pain and impairment. Under Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub. nom. Thun v. Shinseki, 573 F.3d 1366 (Fed Cir. 2009), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The Veteran’s limitation of motion, instability, pain, locking and effusion are all expressly contemplated by the assigned ratings under DCs 5010, 5257, 5258 and 5259. To the extent that pain affects sleep, this is inherent in the ratings. For any manifestations not contemplated by the rating schedule, the evidence still does not show that the Veteran’s disability picture includes frequent hospitalizations or marked interference with employment. The Veteran has not been hospitalized at all for his right knee. As for employment, he reported difficulty standing with prolonged periods in his capacity as a yogurt shop manager during an October 2012 examination and in April 2013 VA records. However, the Veteran’s right knee includes separate 10 percent ratings for limitation of motion and instability, and 10 and 20 percent ratings for meniscal conditions at various points during the appeal period. These ratings represent impairment in earning capacity and are considered adequate to compensate for considerable loss of working time. 38 C.F.R. § 4.1. There is no indication that his right knee disability has resulted in any occupational impairment above and beyond that already contemplated by the assigned ratings, and referral for an extraschedular rating is not warranted. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless where the Board makes an adequate finding that Thun step two is not satisfied). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel