Citation Nr: 1823232 Decision Date: 04/17/18 Archive Date: 04/25/18 DOCKET NO. 12-00 030A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial disability rating greater than 10 percent for right knee lateral meniscal tear (right knee disability). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). (Pursuant to BVA Directive 8430 (May 17, 1999), a separate decision will be issued to address a claim that is also in appellate status of entitlement to additional VA compensation for a dependent spouse.) REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to November 1981. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2014 and August 2017 the Veteran testified before the Board. Transcripts of these hearings are of record. In October 2017, these matters were last before the Board, at which time they were remanded for further development. In October 2017, the Board also adjudicated and granted a claim of entitlement to service connection for a thoracolumbar back disability. However, a review of the record shows that the Board's favorable decision was never issued or effectuated by the RO. The Board has taken steps to remedy this error, and the favorable Board decision granting service connection for the low back disability will be issued and effectuated by the RO. The Board apologizes for the delay. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT Throughout the applicable period, right knee lateral meniscal tear has been manifested by dislocated semilunar cartilage, with frequent episodes of "locking," pain and effusion into the joint. CONCLUSION OF LAW The criteria for an initial rating of 20 percent, but no higher, under Diagnostic Code 5258 for right knee lateral meniscal tear (previously evaluated as painful limitation of flexion) are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5263 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in an August 2008 letter. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided hearings before the Board in July 2014 and August 2017. As there is no allegation that either of the hearings provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearings is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The claim decided herein was remanded in October 2017 to obtain outstanding VA medical records and afford the Veteran a VA examination to address the severity of his right knee disability. Following the Board's remand, up-to-date VA medical records were obtained. The Veteran was scheduled for a VA examination; however, he refused to attend. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board further notes that, where entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655 (b). A claim arising from the assignment of an initial disability evaluation is properly characterized as an original compensation claim. See Turk v. Peake, 21 Vet. App. 565, 570 (2008) (holding that Board's characterization of an initial rating claim as a claim for increase, rather than claim for original compensation, was clear error). Here, the Board remanded the initial evaluation claim to afford the Veteran a new VA examination. After receiving notice of the scheduled examination, the Veteran contacted VA and refused to report for the examination. Because this initial rating claim is classified as an original compensation claim under 38 C.F.R. §3.655(b), the consequence in this case of the Veteran's refusal to report for the VA examination is that his claim must be decided on the evidence of record. 38 C.F.R. §3.655(b). The Veteran seeks a higher initial evaluation for service-connected right knee lateral meniscal tear. Throughout the applicable period, the right knee disability has been assigned a 10 percent evaluation for non-compensable loss of flexion with pain. See 38 C.F.R. § 4.59. The assignment of a particular Diagnostic Code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which Diagnostic Code or Codes are most appropriate for application of the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). A VA treatment record dated in July 2008 reflects complaints of knee pain with recurrent swelling. The Veteran denied locking or buckling at that time. He had a normal gait and posture. There was no effusion in either knee, and range of motion was full bilaterally. There was no clinical instability. There were no meniscal signs in either knee. Early DJD was assessed. The Veteran was afforded a VA examination in July 2009. At that time, he reported symptoms of pain, giving way, repeated effusions and locking episodes 1 to 3 times per month. Examination noted crepitation, but no instability. Flexion was to 110 degrees. Extension was full to zero degrees. There was no additional limitation following repetitive use. The examiner noted that since the original meniscal tear with surgical repair in 1974, the Veteran had sustained a new tear of the lateral meniscus. In February 2015, the Veteran received his latest VA examination. Examination and review resulted in assessment of right knee meniscal tears in 1974 and 1981. The Veteran reported constant pain, worse with squatting, kneeling, walking, climbing or going down stairs. He could not pivot at all. He stated that the knee locked up when he tried to do so. The knee gave way, and the Veteran reported having sustained several falls. He also described intermittent swelling, and popping. He denied flare-ups. Objective examination documented full extension of the right knee to zero degrees, with flexion to 130 degrees. Pain was noted on examination. There was no evidence of pain with weight bearing. Repetitive use did not result in additional functional loss. Joint stability tests were all normal. There was no history of recurrent subluxation or lateral instability. Recurrent effusion was noted, based upon the Veteran's offered history, although there was no clinical evidence of such. A meniscal tear was assessed, with a noted history of meniscectomy in 1974, but not apparently 1981. The examination report references an October 2014 CT scan of the knee, which notably reflects a possible posterior lateral osteocartilaginous loose body. Of record is a December 2015 private treatment record reflecting continued complaints regarding the right knee. Examination of the knee at that time showed tenderness along the anteromedial joint line and along the patellofemoral joint, as well as moderate crepitus. Extension was to 5 degrees. Flexion was to 125 degrees. Initially, the Board points out that Diagnostic Codes 5256, 5257, 5262, and 5263, are inapplicable. Ankylosis, recurrent subluxation or lateral instability, impairment of the tibia and fibula, and genu recurvatum have not been shown. Butts, supra. Here, the RO has assigned the Veteran a 10 percent evaluation under Diagnostic Code 5260, for painful limitation of flexion, which is otherwise non-compensable. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59. Here, however, the Board must note that the disability is properly characterized as a meniscal injury. The rating schedule particularly provides for evaluation of meniscal disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Accordingly, the Board will consider the disability under these diagnostic codes. See Butts, supra. In giving the Veteran the benefit of the doubt, the Board concludes that a 20 percent evaluation is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. The history outlined above indicates that following the meniscal tear in 1981, the Veteran did not undergo a meniscectomy. This, coupled with the 2014 CT scan, noting a loose cartilaginous body, indicates that the Veteran's disability has manifested by dislocated semilunar cartilage. Although there is little, if any, clinical evidence showing a history of locking, pain, and effusion, the Veteran has competently described these manifestations. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Accordingly, throughout the applicable period, the Veteran is entitled to a 20 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5258. Fenderson, supra. The Board acknowledges that the evidence has demonstrated limitation of flexion and extension, albeit to a non-compensable level. The Board notes that it is appropriate to assign a 10 percent evaluation for each plane of motion under such circumstances. Lichtenfels, supra. However, here, the Board has considered pain in the award of the 20 percent evaluation under Diagnostic Code 5258. Thus, if the Board were to award separate 10 percent evaluations for otherwise non-compensable painful limited motion, where the only symptom is pain, the Veteran would be compensated twice for a manifestation of the meniscal disability, i.e. pain. Lyles, supra. Accordingly, the Veteran is not entitled to a separate evaluation for otherwise non-compensable limitation of flexion or extension under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Fenderson, supra. ORDER Entitlement to an initial disability rating of 20 percent, but no greater, is granted, for right knee lateral meniscal tear, subject to the laws and regulations governing the award of monetary benefits. REMAND As noted above, the Board is re-issuing a decision granting entitlement to service connection for a thoracolumbar back disability. The assignment of an initial disability evaluation for this disability will impact the Veteran's claim of entitlement to a TDIU. Therefore, a decision on the claim for entitlement to a TDIU will be deferred pending the assignment of the initial disability evaluation for the low back disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: After an initial disability evaluation for the now service-connected thoracolumbar back disability is assigned by the RO, readjudicate the issue of entitlement to a TDIU. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. 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.A. §§ 5109B, 7112 (West 2014). __________________________ __________________________ MICHAEL A. PAPPAS DAVID L. WIGHT Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals __________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs