Citation Nr: 21061379 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-43 158 DATE: October 1, 2021 ORDER Entitlement to an increased rating of 20 percent, but no more, for left knee anterior intrameniscal ligament tear with cartilage loss and degenerative arthritis status effective August 26, 2016, is granted. Entitlement to an increased rating of 30 percent for left knee instability effective January 6, 2018 is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Veteran's left knee anterior intrameniscal ligament tear with cartilage loss and degenerative arthritis status had manifested in symptoms of locking, pain, and effusion starting August 26, 2016, but no earlier. 2. The Veteran's left knee anterior intrameniscal ligament tear with cartilage loss and degenerative arthritis status is best approximated as 20 percent disabling, which is the maximum schedular rating permitted for dislocation of semilunar cartilage. 3. The Veteran's left knee instability is rated as 30 percent disabling, which is the maximum schedular rating permitted for instability of the knee. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no greater, for left knee anterior intrameniscal ligament tear with cartilage loss and degenerative arthritis status have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. 2. The criteria for a rating of 30 percent, but no greater, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from February 1991 to March 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veteran's Affairs (VA) Regional Office (RO) denying increased ratings for the Veteran's service-connected left knee conditions. The Veteran filed a timely appeal for these matters in December 2016. After further development and adjudication, the Veteran filed an appeal before the Board in August 2017. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in May 2021. INCREASED RATING Disability ratings are intended to represent the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 148 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Entitlement to an increased rating to 10 percent for left knee anterior intrameniscal ligament tear with cartilage loss and degenerative arthritis status effective August 26, 2016. The Veteran contends that he is entitled to a higher rating because his left knee semilunar cartilage condition has progressively worsened since its initial rating in April 2000, where it was evaluated at 10 percent. The Veteran's left knee semilunar cartilage condition is currently rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. Under Diagnostic Code 5259, a 10 percent rating is warranted for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. A similar, but distinct, 20 rating is available under 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking, pain," and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The evaluation of the same "disability" or the same "manifestations" under various diagnoses, known as "pyramiding," is prohibited. 38 C.F.R. § 4.14 (2017). A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. In order to prevent pyramiding, the Board may assign only one rating to the Veteran's left knee semilunar cartilage condition, under either DC 5258, granting a 20 percent rating, or DC 5259, granting a 10 percent rating. After reviewing the evidence of the Veteran's case and considering the facts in a light most favorable to the Veteran, the Board finds that a 20 percent rating under DC 5258 best reflects the severity of the Veteran's current left knee semilunar cartilage disability. The Veteran's treatment records indicate that he was diagnosed with a small effusion of the left knee following an August 2016 MRI from a VA medical facility. These findings were confirmed again in a September 2016 MRI done by the Veteran's private medical provider. The Veteran testified at his May 2021 hearing that he began experiencing locking of his knee approximately 17 years after service, suggesting he developed that symptomatology notably proximate to the diagnosis of effusion. Because the symptomatology of his left knee semilunar cartilage condition, including complaints of effusion and locking, is better approximated by the criteria of DC 5258 than DC 5259, the Board finds that the Veteran is entitled to a rating under DC 5258. Accordingly, this merits that the Veteran's disability rating for his left knee semilunar cartilage condition be increased to 20 percent, effective August 26, 2016, the earliest date of left knee effusion identified. As the Veteran is now in receipt of the highest schedular rating for a condition of semilunar cartilage, there is no basis to award a higher evaluation. 2. Entitlement to an increased rating of 30 percent for left knee instability effective January 6, 2018. The Veteran is currently in receipt of a 30 percent disability rating for left knee recurrent instability under DC 5257. However, the February 2018 rating decision granting this rating also stated that this rating would only be temporary. The Veteran contends he is entitled to a permanent 30 percent rating. The Veteran's left knee condition is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A review of the Veteran's medical record demonstrates that his current 30 percent disability rating was based on findings made at a January 2018 VA examination, approximately three months after the Veteran's left knee surgical procedures. The evidence shows that even with surgical intervention, the Veteran's left knee instability had progressed to a state warranting a 30 percent disability rating the opposite of what would be anticipated after a period of recuperation. Accordingly, the Board finds that the Veteran is entitled to a continued, rather than temporary, assignment of his 30 percent disability rating for left knee instability. As the Veteran is in receipt of the highest schedular rating for other impairment of the knee, there is no basis to award a higher evaluation. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg, but finds these ratings are not warranted. Diagnostic Code 5256 assesses the severity of ankylosis of the knee; a review of the Veteran's record shows that his left knee condition has never manifested in ankylosis. Diagnostic Codes 5260 and 5261 assess the severity of a knee condition based on limitation of motion; although the Veteran's record shows that he has experienced slight limitation of motion in the uppermost range of flexion of his left knee, it has not reached a level of limitation compensable for a disability rating by VA standards. Diagnostic Code 5262 assesses conditions of the tibia and fibula; a review of the Veteran's record shows that his left knee condition has never manifested in afflictions to the tibia and fibula. Diagnostic Code 5263 assesses the severity of genu recurvatum; a review of the Veteran's record shows that his left knee condition has never manifested in genu recurvatum. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.