Citation Nr: 21001466 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 14-04 162 DATE: January 8, 2021 ORDER Entitlement to a 20 percent rating, but no higher, for dislocated right knee semilunar cartilage under Diagnostic Code 5258, in place of the 10 percent rating assigned for right knee partial lateral meniscectomy under Diagnostic Code 5259 effective from December 22, 2008 to January 20, 2010 is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a 20 percent rating, but no higher, for left knee recurrent subluxation pursuant to Diagnostic Code 5257 from December 22, 2008 to July 17, 2018, is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a 10 percent rating, but no higher, for right knee recurrent subluxation pursuant to Diagnostic Code 5257 effective from December 22, 2008 to July 17, 2018, is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a 20 percent rating, but no higher, for dislocated left knee semilunar cartilage under Diagnostic Code 5258 effective from December 22, 2008 to January 20, 2010, is granted, subject to the controlling regulations applicable to the payment of monetary benefits. REMANDED Entitlement a rating in excess of 10 percent for right knee recurrent subluxation is remanded. Entitlement to a rating in excess of 20 percent for left knee recurrent subluxation prior to October 29, 2019 is remanded. REASONS FOR REMAND The Veteran had active service from November 1980 to March 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2017, the Veteran presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. This case was previously before the Board in December 2017 and September 2019. In September 2019, the Board, in pertinent part, granted a 20 percent rating, but no higher, for dislocated right knee semilunar cartilage under Diagnostic Code 5258, in place of the 10 percent rating assigned for right knee partial lateral meniscectomy under Diagnostic Code 5259, and granted a 20 percent rating, but no higher, for the already service-connected left knee recurrent subluxation pursuant to Diagnostic Code 5257. The Board also granted a 10 percent rating, but no higher, right knee recurrent subluxation pursuant to Diagnostic Code 5257, a 20 percent rating, but no higher, dislocated left knee semilunar cartilage under Diagnostic Code 5258, and 10 percent ratings each, but no higher, for the right knee limitation of flexion and left knee limitation of flexion pursuant to Diagnostic Code 5260. In the September 2019 Board decision the Board discussed that the Veteran’s appeal for higher ratings for his service-connected right and left knee disabilities was filed in February 2009, and thus, the Board concerned with the degree of disability shown since then (the Veteran’s claim for service connection for his back disability, also adjudicated in the September 2019 board decision, was received in February 2009; however, his informal claim for increased ratings for his knee disabilities was received on December 22, 2008). Thereafter, a November 2019 rating decision partially, but not completely, effectuated the September 2019 Board decision. Specifically, the November 2019 rating decision granted service connection for right knee limitation of flexion and left knee limitation of flexion, pursuant to Diagnostic Code 5260 and assigned 10 percent ratings each, effective from December 22, 2008. However, the November 2019 rating decision granted an increased 20 percent rating for dislocated right knee semilunar cartilage under Diagnostic Code 5258, in place of the 10 percent rating assigned for right knee partial lateral meniscectomy under Diagnostic Code 5259 effective January 21, 2010, rather than from December 22, 2008. Similarly, the November 2019 rating decision granted an increased rating 20 percent rating for left knee recurrent subluxation pursuant to Diagnostic Code 5257 effective July 18, 2018, rather than from December 22, 2008. The November 2019 rating decision also granted service connection for right knee recurrent subluxation pursuant to Diagnostic Code 5257 and assigned a 10 percent rating effective from July 18, 2018, rather than December 22, 2008, and also granted service connection for dislocated left knee semilunar cartilage pursuant to Diagnostic Code 5258 and assigned a 20 percent rating, effective from January 21, 2010, rather than December 22, 2008. As noted above, the current claim for increase for each knee disability stems from a December 22, 2008 informal claim for increase. Thus, the rating period for consideration on appeal is from one year prior to the date of receipt of the claim for increase, if it is factually ascertainable that an increase occurred during that period. In this regard, it clear from the September 2019 Board decision that the grants awarded within the decision were from the date of the claim for increase, specifically from December 22, 2008, as shown by the discussion which cited to evidence dated throughout the appeal period. For example, the Board specifically found in February 2009, the Veteran reported that his knees had been giving out up to 10 times per day, including while walking, and that he was continuing to catch his balance to prevent falls. Thus, the entitlement to a 20 percent rating, but no higher, for dislocated right knee semilunar cartilage under Diagnostic Code 5258, in place of the 10 percent rating assigned for right knee partial lateral meniscectomy under Diagnostic Code 5259 effective from December 22, 2008 to January 20, 2010 should be granted. Similarly, entitlement to a 20 percent rating, but no higher, for left knee recurrent subluxation pursuant to Diagnostic Code 5257 from December 22, 2008 to July 17, 2018, should be granted. Additionally, entitlement to a 10 percent rating, but no higher, for right knee recurrent subluxation pursuant to Diagnostic Code 5257 effective from December 22, 2008 to July 17, 2018 and entitlement to a 20 percent rating, but no higher, for dislocated left knee semilunar cartilage under Diagnostic Code 5258 effective from December 22, 2008 to January 20, 2010, should each be granted. In order to assure that these awards are not overlooked, the Board has added them into the Order section above. As noted above, in September 2019, the Board, in pertinent part, granted a 10 percent rating, but no higher, for right knee recurrent subluxation and also granted a 20 percent rating, but no higher, for left knee recurrent subluxation. The Veteran appealed the Board’s September 2019 denial of higher evaluations for right and left knee recurrent subluxation to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in May 2020, the Court granted Joint Motion for Partial Remand (JMPR) of the parties (the Secretary of VA and the Veteran), and vacated the Board’s decision with respect to these issues, and remanded the case to the Board for re-adjudication consistent with the JMPR. Thus, these issues have now returned to the Board for further review. Additionally, during the pendency of the claim for an increased rating for Veteran’s left knee recurrent subluxation, a January 2020 rating decision granted a temporary 100 percent (total) rating under 38 C.F.R. § 4.30 effective October 29, 2019 through November 30, 2020, and granted a 40 percent rating from December 1, 2020. Because this award does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran’s appeal as to this issue remains for Board consideration. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). The January 2020 rating decision also recharacterized the Veteran’s left knee disabilities, including his left knee recurrent subluxation, and changed the Diagnostic Code under which the Veteran’s left knee disabilities were rated, including from Diagnostic Code 5257, for recurrent subluxation or lateral instability, to a rating under Diagnostic Code 5055 for knee replacement (prosthesis). See Read v. Shinseki, 651 F. 3d 1296 (Fed. Cir. 2011) (service connection for a disability is not severed when the Diagnostic Code associated with it is changed to more accurately determine the benefit to which a Veteran may be entitled). Thus, the Board has recharacterized the claim for an increased rating for left knee recurrent subluxation as entitlement to a rating in excess of 20 percent for left knee recurrent subluxation prior to October 29, 2019. See Tedesco v. Wilkie, 31 Vet. App. 360, 367, n. 5 (2019). As a final initial matter, VA correspondence dated June 30, 2020 has been issued to the Veteran and his representative, informing the Veteran that he may submit any additional argument or evidence within 90 days of the date of the letter or waive the 90 day period if he would like the Board to proceed to immediate adjudication of the appeal for the issues vacated by the Court. In a response received by VA on July 30, 2020, the Veteran responded that he had no additional evidence or argument to submit and he waived any remaining time to submit additional evidence or argument. As the 90 day period has now elapsed and the Veteran reported he did not have additional evidence or argument to submit, the Board may proceed with appellate review. 1. Entitlement a rating in excess of 10 percent for right knee recurrent subluxation is remanded. 2. Entitlement to a rating in excess of 20 percent for left knee recurrent subluxation prior to October 29, 2019 is remanded. Additional evidence developed by VA, to include additional VA treatment records and a January 2020 knee and lower leg conditions disability benefits questionnaire (DBQ), was associated with the record subsequent to the most recent, March 2019 supplemental statement of the case issued for the appeal herein, and after transfer of the appeal to the Board. Thus, on November 2, 2020, VA sent a letter to the Veteran and his representative inquiring whether they wished to waive Agency of Original Jurisdiction (AOJ) review of this new evidence. They were informed that if they did not respond within 45 days, VA would assume that they did not waive AOJ review. No response has been received. In these circumstances, the law requires that the Board return the appeal to the AOJ for initial consideration of the new evidence. 38 C.F.R. §§ 19.37(b); 20.1305(c). Thus, a remand for AOJ consideration of this evidence is warranted. The matters are REMANDED for the following actions: 1. The AOJ should fully effectuate the awards pertaining to the Veteran’s right and left knee disabilities, as set forth in the September 2019 Board decision. In so doing, the AOJ should ensure that the rating decision codesheet reflects that the Veteran has been assigned the correct evaluations for each knee disability from the date of the informal claim for increase, specifically from December 22, 2008. 2. Readjudicate the issue of entitlement a rating in excess of 10 percent for right knee recurrent subluxation and entitlement to a rating in excess of 20 percent for left knee recurrent subluxation prior to October 29, 2019, with review of all evidence received since the last prior adjudication of the Veteran’s claims. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case   and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.