Citation Nr: 18156239 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 12-24 336 DATE: December 7, 2018 ORDER A separate rating of 10 percent, but no greater, for symptomatic left knee meniscus removal, from October 20, 2009, to September 5, 2012, is granted. An initial rating in excess of 20 percent for left knee degenerative joint disease from October 20, 2009, to September 5, 2012, is denied. FINDINGS OF FACT 1. Left knee meniscus removal symptoms were associated with the Veteran’s service-connected disability from October 20, 2009, to September 5, 2012. 2. Considering the Veteran’s symptomatology in total from October 20, 2009, to September 5, 2012, his left knee degenerative joint disease approximated extension of the leg limited to 15 degrees. CONCLUSIONS OF LAW 1. The criteria for a separate rating of 10 percent, but no greater, for symptomatic left knee meniscus removal, from October 20, 2009, to September 5, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. 2. The criteria for an initial rating in excess of 20 percent for left knee degenerative joint disease from October 20, 2009, to September 5, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to April 1980. This appeal is before the Board of Veterans’ Appeals (Board) from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2017 decision, the Board granted an increased initial rating, from 10 to 20 percent, for left knee degenerative joint disease from October 20, 2009, to September 5, 2012; granted a separate rating of 10 percent for left knee instability from October 20, 2009, to September 5, 2012; and denied a rating in excess of 60 percent for status post total left knee replacement from November 1, 2013. It also remanded issues of service connection for a right knee disability and a total disability rating for individual unemployability due to service-connected disabilities (TDIU). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Veteran, through his attorney, and the Secretary of Veterans Affairs submitted an Amended Joint Motion for Partial Remand (Joint Motion) to vacate and remand that specific portion of the Board’s decision that denied an initial rating in excess of the granted 20 percent for left knee degenerative joint disease from October 20, 2009, to September 5, 2012. In a May 2018 Order, the Court granted the Motion and remanded the case to the Board accordingly. The Board notes that, since the case was certified to the Board, additional evidence has been associated with the claims file; the pertinent portion of such evidence is cumulative of evidence already of record. See 38 C.F.R. § 20.1304(c). I. Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved unless limitation of motion of the specific joint or joints involved is noncompensable (0 percent) under the appropriate diagnostic codes. See 38 C.F.R. § 4.71, Diagnostic Codes (DCs) 5003, 5010. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensable; flexion limited to 45 degrees is rated 10 percent; flexion limited to 30 degrees is rated 20 percent; and flexion limited to 15 degrees is rated 30 percent. 38 C.F.R. § 4.71a. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensable; extension limited to 10 degrees is rated 10 percent; extension limited to 15 degrees is rated 20 percent; extension limited to 20 degrees is rated 30 percent; extension limited to 30 degrees is rated 40 percent; and extension limited to 45 degrees is rated 50 percent. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. DC 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). II. Factual Background As the Board discussed in its September 2017 decision, for the period from October 20, 2009, to September 5, 2012, VA and private treatment records and an April 2010 VA examination reflect that the Veteran’s left knee degenerative arthritis was manifested by pain, swelling, tenderness, stiffness, weakness, and limitation of motion. Such symptoms resulted in functional knee impairment including increased pain and difficulty in bending, stooping, standing, walking, climbing steps, and other normal uses of the knee, and inability to squat. The most to which the Veteran’s knee extension was restricted on range of motion testing was to 10 degrees on April 2010 VA examination. However, the Veteran’s left knee was shown on April 2010 VA examination to have had mild muscle atrophy, even though muscle strength was consistently full (5/5) on testing throughout the period. Also, his left knee arthritis was repeatedly noted to have been severe, with X-rays revealing complete loss of joint space as noted in December 2009, and with the necessity for knee replacement surgery noted throughout the period. He was also noted to have had severe pain at end range of motion with palpable retropatellar crepitus in September 2011. Considering this symptomatology in its total, resolving reasonable doubt in the Veteran’s favor, the Board found that his left knee degenerative arthritis reasonably approximated extension of the leg limited to 15 degrees. It therefore warranted a 20 percent rating under DC 5261 from October 20, 2009, to September 5, 2012. The Board determined that a rating greater than 20 percent was not warranted for left knee arthritis under DC 5261. While on April 2010 VA examination the Veteran was limited to 10 degrees of extension, he was noted only to have been limited by 5 degrees in September 2009, April, September, and December 2011, and March 2012. Furthermore, no separate rating for limitation of flexion was warranted. The most flexion was noted to be limited was to 80 degrees on April 2010 VA examination; multiple other measurements of flexion during this period were from 95 to 110 degrees. The Board found that, even considering pain and other such factors, the record did not reflect flexion of the leg limited to 45 degrees or greater. The Board thus found the symptomology associated with the Veteran’s degenerative arthritis to be adequately contemplated in a 20 percent rating under DC 5261 (in addition to a separate 10 percent rating for left knee instability under DC 5257). It determined, accordingly, that for the period from October 20, 2009, to September 5, 2012, a rating of 20 percent, but no greater, for left knee degenerative joint disease is warranted. III. Joint Motion The parties’ May 2018 Joint Motion, granted by the Court’s May 2018 Order, was expressly and specifically to vacate and remand “the portion of the September 28, 2017, decision of the [Board] that denied entitlement to an initial rating in excess of the granted 20% for left knee degenerative joint disease (DJD) from October 20, 2009, to September 5, 2012.” In so doing, the parties stipulated that the Veteran “is not challenging the Board’s denial of entitlement to a rating in excess of 60% for status post total left knee replacement” or “the Board’s denial of a rating in excess of 10 percent for the Veteran’s knee instability,” and “hereby waives any appeal with respect to those issues, and the Court should dismiss that portion of the appeal,” citing Pederson v. McDonald, 27 Vet. App. 276, 285 (2015) (en banc). In the Joint Motion, the parties determined that, “when denying a higher rating for [the Veteran’s] left knee disability, the Board relied on the findings of an April 2010 VA examination report without sufficiently addressing the adequacy of this report in light of the holdings in Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and Sharp v. Shulkin, 29 Vet. App. 26 (2017).” The parties found that “the April 2010 VA examiner noted that [the Veteran] had flare ups, but he stated that it would be speculative to comment further on [the Veteran’s] range of motion, fatigability, incoordination, pain, or flare-ups beyond what was already contained in the examination report,” but “did not provide an opinion as to [the Veteran’s] functional loss, if any, during flare ups, estimate the functional limitation during flare ups if feasible, or state why he could not provide such an estimate beyond stating that it would be speculative.” According to the parties, “[t]he examiner also did not state whether further testing or additional information would be helpful in addressing [the Veteran’s] functional loss during a flare-up.” The parties determined that “the Board did not discuss this matter in its September 2017 decision when it relied on this VA examination report to deny a rating in excess of the granted 20%,” and that “[g]iven the findings contained in the April 2010 VA examination report and the Court’s holdings in Mitchell and Sharp, the Board should have addressed its reliance on the April 2010 VA examination report in evaluating [the Veteran’s] left knee disability for the period between October 20, 2009, and September 5, 2012.” IV. Analysis Initially, the Board will “address[] its reliance on the April 2010 VA examination report in evaluating [the Veteran’s] left knee disability for the period between October 20, 2009, and September 5, 2012,” in accordance with the terms of the May 2018 Joint Motion. The Board notes the parties’ observation that the April 2010 VA examination—which took place more than 8 and a half years ago— on which the Board relied in its decision, was not fully adequate given the Court’s holdings in Mitchell and Sharp, including the failure of the examiner to “state whether further testing or additional information would be helpful in addressing [the Veteran’s] functional loss during a flare-up.” The Board relied on the on the April 2010 VA examination report in determining the Veteran’s rating for his left knee disability for the period between October 20, 2009, and September 5, 2012, because this examination report is the existing probative evidence of record; it is the only examination—or existing evidence during that time period—specifically to determine of the disability level of the Veteran’s service-connected knee disorder. There is no examination or other medical evidence of the Veteran’s knee disability during this period that more closely complies with the requirements of Mitchell and Sharp, and for obvious reasons VA cannot obtain one. There is no remedy or action that could be taken by VA to provide a more adequate examination during the time period in question, which ended more than 6 years ago, and no such remedy was suggested by the Joint Motion. In an October 2018 brief, the Veteran’s attorney again noted that the April 2010 VA examination was inadequate under Mitchell and Sharp, and suggested that because of this “remand is warranted for a new VA examination that adequately addresses the degree of the Veteran’s functional loss during flare-ups of his left knee disability.” However, the Veteran’s attorney did not explain how examination of the current severity of the Veteran’s left knee disability, including functional loss, more than 6 years after the rating period in question had ended, and more than 6 years after the Veteran has undergone a total left knee replacement and been rated under different criteria specifically for knees that have undergone total replacement, would be useful. Neither the Veteran’s attorney nor the Joint Motion or anything else in the record has explained what additional evidence—pertinent to determining the severity level of the Veteran’s left knee disability from October 20, 2009, to September 5, 2012, beyond that evidence already of recorded—might be obtained by further examination of the Veteran’s knee or other further development of the record. The Board thus finds that remand for any such examination or development would be futile. After again reviewing the record, the Board again determines, for the reasons given in its September 2017 decision and discussed above, that for the period of October 20, 2009, to September 5, 2012, considering its symptomatology in total, the Veteran’s left knee degenerative arthritis reasonably approximated extension of the leg limited to 15 degrees. It therefore warrants a 20 percent rating under DC 5261 during that period. The Board again finds the symptomology associated with the Veteran’s degenerative arthritis to be adequately contemplated in a 20 percent rating under DC 5261. Thus, for the period from October 20, 2009, to September 5, 2012, an initial rating in excess of 20 percent for such disability is not warranted. The Board, however, notes the Veteran’s attorney’s following arguments in the October 2018 brief: In this case, the evidence demonstrates that the Veteran underwent a meniscectomy of the left knee in 1980. By definition, a meniscectomy requires excision or removal of the semilunar cartilage. Accordingly, the Veteran need only show that the removal of his left lunar cartilage has been symptomatic in order to establish entitlement to a separate 10-percent rating under DC 5259. 38 C.F.R. § 4.71a. To that end, the evidence demonstrates that the Veteran experiences symptoms beyond limitation of motion and pain as a result of his left knee semilunar cartilage removal. For example, the November 2009 VA treatment notes indicates that the Veteran’s knee disability was causing muscle atrophy in his left thigh as a result of disuse, and that his left thigh muscle was two inches smaller than that of his right thigh. The same treatment notes indicated that the Veteran experienced swelling after limited walking. The March 2010 VA examiner noted that the Veteran exhibited swelling in his left knee. An April 2011 VA treatment note indicated that the Veteran was experiencing swelling and possible joint effusion. The next month, the Veteran indicated experiencing a popping sensation in his left knee, and received injections to relieve some his symptoms. This evidence demonstrates that the Veteran experienced other symptoms not contemplated by his current ratings under DCs 5257 and 5261, including locking, swelling and effusion. The relevant rating criteria associate these symptoms with semilunar cartilage removal, which the Veteran underwent in approximately 1980…. The record reflects, however, that the Veteran was seen for left knee pain in February 1982, at which time he was admitted for diagnostic arthroscopy and noted to have a tear of the posterior horn of the medial meniscus, and multiple loose bodies in his knee. Subsequently, he had excision under arthroscopic control of the posterior horn of the medial meniscus, excision of multiple loose bodies, and shaving and drilling of the femur, and was discharged on the day of surgery. While the Veteran’s meniscus surgery occurred in 1982—rather than in 1980, as asserted by his attorney—resolving reasonable doubt in the Veteran’s favor, the Board finds that such symptoms asserted by the Veteran and his attorney warranting a separate 10 percent rating under DC 5259 were associated with the Veteran’s service-connected disability during the period in question from October 20, 2009, to September 5, 2012. Therefore, during that period, in addition to the 20 percent rating for left knee degenerative joint disease and 10 percent for left knee instability, another, separate 10 percent rating for symptomatic left knee meniscus removal is warranted, as requested by the Veteran’s attorney in the October 2018 brief. The Board also notes that, in that October 2018 brief, the Veteran’s attorney goes on to assert that “the Board should find that the Veteran is entitled to a separate 10-percent rating under DC 5259 for the entire period on appeal.” However, as explained above, in the May 2018 Joint Motion, the Veteran, represented by his attorney, expressly limited his appeal to “the portion of the September 28, 2017, decision of the [Board] that denied entitlement to an initial rating in excess of the granted 20% for left knee degenerative joint disease (DJD) from October 20, 2009, to September 5, 2012.” Again, in that Joint Motion, the parties stipulated that the Veteran “is not challenging the Board’s denial of entitlement to a rating in excess of 60% for status post total left knee replacement,” and “hereby waives any appeal with respect to those issues, and the Court should dismiss that portion of the appeal,” citing Pederson, 27 Vet. App. at 285. The Joint Motion specifically limited its terms to the propriety of the rating of the Veteran’s service-connected left knee disability during the period of October 20, 2009, to September 5, 2012, and the Veteran, through his attorney, expressly waived, and requested Court dismissal of, appeal of the other issues decided in the September 2017 Board decision. This included the propriety of the rating of the Veteran’s service-connected left knee disability from November 1, 2013: i.e., the Board’s denial of a rating in excess of 60 percent for status post total left knee replacement from November 1, 2013. As this issue was decided by the Board, not appealed to the Court—and, on the contrary, waived by the Veteran—and is no longer before the Board, the Board will not reconsider it here. See Pederson, 27 Vet. App. at 285; see also Carter v. Shinseki, 26 Vet. App. 534, 542-43.   Accordingly, an initial rating in excess of 20 percent for left knee degenerative joint disease from October 20, 2009, to September 5, 2012, must be denied; but a separate 10 percent rating for symptomatic left knee meniscus removal from October 20, 2009, to September 5, 2012, must be granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel