Citation Nr: 18156089 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 07-14 238 DATE: December 6, 2018 ORDER Entitlement to an increased evaluation for a left knee post-operative left medial meniscectomy with arthritis, other than instability, currently evaluated at 20 percent disabling is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 19, 2017 is remanded. FINDING OF FACT The Veteran’s most recent September 2017 left knee VA C&P examination shows cartilage, semilunar, dislocated, with frequent episodes of locking pain, and effusion into the joint with flexion. No compensable limitation of motion was found on examination to warrant an increased evaluation. CONCLUSION OF LAW The criteria for entitlement to an increased evaluation for a left knee post-operative left medial meniscectomy with arthritis, other than instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.71a, 5258, 5260, 5261 Diagnostic Code (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty service from July 1970 to June 1973. The Board remanded the Veteran’s above claims for additional development in December 2012 and most recently in July 2017. The Veteran testified before the undersigned in March 2017. Requested development has been conducted in part, further development of the TDIU issue will be requested below. While the case was in Remand status, a separate 10, and then 30 percent rating was assigned for instability of the left knee. The Veteran has not disagreed with the ratings for instability, and as such, although considered in a supplemental statement of the case, and as the 30 percent is the maximum rating for instability, the Board will not further address that issue. Orthopedic manifestations, including limitation of motion, remain before the Board. Entitlement to an increased evaluation for a left knee post-operative left medial meniscectomy with arthritis, other than for instability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4 (2018). Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155 (2012). The evaluation of a service-connected disorder requires a review of a Veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder. Additionally, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2017). For conditions that are not specifically listed in the Schedule, VA regulations provide that those conditions may be rated by analogy under the DC for “a closely related disease or injury.” 38 C.F.R. § 4.20 (2018); see 38 C.F.R. § 4.27 (“When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy.” Where, however, a condition is listed in the schedule, rating by analogy is not appropriate. In other words, “[a]n analogous rating... may be assigned only where the service-connected condition is unlisted.”) Suttman v. Brown, 5 Vet. App. 127, 134 (1993). Diagnostic Code 5258, 5260, and 5261, of 38 C.F.R. § 4.71a (2018) specifically addresses post-operative arthritic knee disorders under a general rating formula for musculoskeletal disorders. Under Code 5258, a 20 percent rating is warranted where there is cartilage, semilunar, dislocated, with frequent episodes of “locking”, pain, and effusion into the joint with flexion. Under Code 5260, a 30 percent rating is warranted for flexion limited to 15 degrees. Under Code 5261, a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent evaluation is warranted for extension limited to 30 degrees; and a 50 percent evaluation is warranted for extension limited to 45 degrees. The Veteran has been assigned a 20 percent evaluation through the rating period on appeal. This is bases on the provisions of Code 5258, set out above. The Board finds no basis for an award of an increased evaluation as discussed below. The Veteran underwent a VA left knee C&P examination in October 2013. The examiner diagnosed derangement of the left knee; osteoarthritis of the left knee; and Osgood Schlatter disease of the left knee. Left knee flexion was 90 degrees with no objective evidence of painful motion. The examiner also diagnosed some functional impairment of the Veteran’s left knee with left knee joint pain on movement, occasional flaring, and weight bearing pain. The Veteran’s 20 percent evaluation was maintained as there is cartilage, semilunar, dislocated, with frequent episodes of “locking”, pain, and effusion into the joint with flexion. The Veteran underwent his most recent VA left knee C&P examination in September 2017. The examiner diagnosed the Veteran with a left knee anterior cruciate ligament tear; a posterior cruciate ligament tear of the left knee; a patellar tendon rupture of the left knee; and osteoarthritis of the left knee. The examiner also diagnosed functional impairment of the Veteran’s left knee with left knee joint pain on movement, occasional flaring, and weight bearing pain. Left knee flexion was limited to 90 degrees with left knee extension was limited to 0 degrees. Regarding the Veteran’s functional and occupational impairment, the examiner noted that the Veteran cannot stand or walk for long periods of time and can only perform light physical and sedentary task. The examiner noted that there is no change in the Veteran’s already established prior VA diagnosis. The Veteran’s 20 percent evaluation was maintained as there is cartilage, semilunar, dislocated, with frequent episodes of “locking”, pain, and effusion into the joint with flexion. The Veteran already has the highest evaluation allowed under the law of 20 percent under diagnostic code 5258. Diagnostic codes 5260 and 5261 are not for application as the Veteran’s Flexion was limited to 90 degrees and his extension was limited to 5 degrees warranting 0 percent rating. The provisions of 38 C.F.R. §4.40 and §4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown and Mitchell v. Shinseki, have been considered and are not warranted. The foregoing summary of the treatment record for a left knee post-operative left medial meniscectomy with arthritis disorder and the explanation of the method by which disability ratings are determined offer no possibility for an increased evaluation. The Board has reviewed and carefully considered the Veteran’s lay statements and hearing testimony asserting that the severity of his left knee disorder has increased. This has assisted the Board in better understanding the nature and development of the Veteran’s disorder and its effect. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a disorder, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Based on the evidence of record, the Board finds that the Veteran’s left knee disorder symptoms are manifest by no more than cartilage, semilunar, dislocated, with frequent episodes of “locking”, pain, and effusion into the joint with flexion. The current diagnosis of the Veteran’s left knee disability more closely warrants the already assigned 20 percent evaluation.   REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 19, 2017 While the case was in remand status following the July 2017 remand, additional impairment of each knee was rated, and service connection for hip pathology was granted. As such as of July 19, 2017, the Veteran met the schedular criteria for TDIU, and the benefit was granted as of that date. In view of the appeal period in this case, the period prior to July 19, 2017 remains at issue. At that time the veteran did not meet the criteria for a schedular rating for TDIU. In the remand, it was indicated that if he did not meet the schedular criteria, the matter was to be referred to the Director, Compensation Service, or a full explanation of why that was not done should be set out. The Board cannot find evidence that either was done. SSA disability treatment records reveal that the Veteran was medically retired due to service connected and non-service connected disabilities. SSA determined that the Veteran was unable to work in his past occupation and that the Veteran had not engaged in substantial gainful activity since August 2011. In an March 2012 VA C&P Back examination the examiner diagnosed the Veteran with degenerative disc disease. Regarding occupational and functional limitations, the examiner noted that the Veteran back condition may intermittently impair his ability to perform job responsibilities that include prolonged sitting, standing, or walking. In October 2013, the Veteran underwent a VA knee examination for his service connected knee disorders. The examiner noted the functional impairments of prolonged sitting, standing, walking, squatting, or the use of stairs. The examiner opined that the severity of the Veteran’s knee disorders impacts his ability to work or maintain substantially gainful employment. In view of these findings, and as the Board cannot establish an extraschedular rating initially, referral to the Director, Compensation Service is appropriate. In view of the foregoing this case is REMANDED for the following action: Refer the issue of a TDIU to the Director, Compensation Service, for a comprehensive review and opinion as to whether the service connected disorders, as rated prior to July 19, 2017, were sufficient to preclude substantially gainful employment. The claims folder must accompany the request and all pertinent findings and opinions associated with the claims folder, prior to return to the Board, if in order. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel