Citation Nr: 21062718 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 07-33 953 DATE: October 12, 2021 ORDER An initial 20 percent rating, but no more, for symptomatic residuals of right knee semilunar cartilage removal is granted subject to the criteria governing payment of monetary benefits. FINDINGS OF FACT 1. The Veteran served on active duty from September 1977 to February 2006. 2. A right knee disability has been manifested by subjective complaints of pain and stiffness; objective findings include a meniscal condition with recurrent frequent episodes of locking, joint pain and effusion, but no subluxation, lateral instability, ligament tear, tibial or fibular impairment, shin splints, or medial tibial stress syndrome (MTSS), flexion to be, at worst, 40 degrees, and extension to be, at worst, 0 degrees. CONCLUSION OF LAW The criteria for an initial 20 percent rating, but no more, for symptomatic residuals of right knee semilunar cartilage removal have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Codes (DCs) 5299-5258, 5010-5260 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal was most recently remanded by the Board in December 2020 and May 2021. A complete and thorough procedural history was outlined in preceding Board decisions and it is incorporated by reference at this time. There has been substantial compliance with the remand directives, and there is no bar to proceeding with the appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the amended version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the pre-amended regulation is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021 and both the pre-amended and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. During the pendency of the appeal, the right knee disability, diagnosed as right knee degenerative joint disease (DJD), has been rated as 10 percent disabling under DCs 5299-5258 and 5010-5260. He asserts that his disability is worse than contemplated by the currently-assigned rating. The Board will consider all potentially relevant diagnostic codes. Under the pre-amended regulations, a 20 percent rating is warranted when the objective medical evidence shows: X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations; ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees moderate recurrent subluxation or lateral instability; semilunar cartilage disorder with frequent episodes of "locking," pain, and effusion into the joint; flexion of the leg limited to 30 degrees; extension of the leg limited to 15 degrees; or malunion of the tibia or fibula with moderate knee or ankle disability. Under the revised criteria, a 20 percent rating is warranted when the objective medical evidence shows: a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; one of the following: o 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 o 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 flexion of the leg limited to 30 degrees; extension of the leg limited to 15 degrees; or MTSS, or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. Prior to the regulatory change, a 30 percent rating was warranted when the objective medical evidence showed malunion of the tibia or fibula with marked knee or ankle disability. As of February 7, 2021, under the amended criteria, a 30 percent rating is warranted when the objective medical evidence shows MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Turning to the evidence, and considering the semilunar cartilage disorder, the Veteran has a meniscal injury. The record shows that he underwent a meniscus repair in 2005. The March 2020 VA examiner found that the Veteran had a semilunar cartilage disorder which resulted in frequent episodes of locking, effusion and joint pain. An August 2020 addendum opinion reflected that the Veteran's semilunar cartilage was not removed during his surgery but still resulted in pain and limitation of motion. The June 2021 VA examiner noted constant joint pain and intermittent swelling, with a reduced range of motion. Thus, a 20 percent disability rating, but not higher, is warranted for the right knee meniscal disorder as frequent episodes of locking, effusion and joint pain have been shown. Next, the Veteran has been diagnosed with right knee degenerative arthritis; however, no VA examiners have found that right knee arthritis caused incapacitating exacerbations. Similarly, a review of the private and VA medical records failed to demonstrate any such incapacitating exacerbations due to degenerative arthritis. Therefore, the evidence does not support a higher rating based on arthritis. Additionally, the Veteran has not claimed nor does the medical evidence show that he has ankylosis in the right knee. Notably, he has undergone eight VA examinations during the pendency of this appeal, and no VA examiner has identified ankylosis of the right knee. Similarly, neither private nor VA medical records note that he had ankylosis in the right knee. As such, a higher rating due to ankylosis is not warranted. Next, no VA examiner has found that the Veteran had a history of recurrent subluxation. Specifically, all found that the Veteran had no history of recurrent subluxation or lateral instability of the right knee. Similarly, a review of his private and VA medical records, as well as all VA examinations, note that while his right knee occasionally would give way, there was no history of moderate recurrent subluxation or moderate lateral instability. Therefore, a higher rating for recurrent subluxation or lateral instability is not warranted for the right knee. Next, the Board notes that the record reflects that on multiple occasions that the Veteran experienced swelling of his right knee; however, the criteria for a rating under DC 5010 (5003) state that, "limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion." Therefore, the criteria for DC 5010, for which the Veteran is rated for limitation of motion of his right knee, specifically contemplate symptoms of swelling in a rating for limitation of motion and a higher rating is not warranted under this criteria. Next, the evidence does not support higher ratings based on limitation of flexion or extension. To that end, the Veteran is currently-assigned a 10 percent rating for limitation of flexion for pain rather than measured limitation of flexion, in the right knee, which has been increased to 20 percent as of this decision. While range of motion testing has been conducted many times in his frequent VA examinations, the worst range of motion testing showed flexion to 50 degrees, with a decline to 40 degrees on repeated use, and extension to 0 degrees in June 2021. At no other point during the appeal period was his range of motion for the right knee measured at less than 40 degrees for flexion, or 0 degrees for extension. As such, the medical evidence does not support higher ratings under DCs 5260-5261 for limitation of motion. Next, the Veteran has not claimed, and the evidence does not show, impairment of the tibia or fibula. VA examiners in June 207, May 2011, January 2016, September 2016, March 2018, March 2020, March 2021 and June 2021, did not find any impairment of the tibia or fibula in the right leg. Further, private and VA medical records did not show a left or right tibia or fibula impairment. Therefore, a higher rating is not warranted under these criteria. Based on the above, the medical evidence supports a 20 percent rating, but no more, for a right knee disability. Specifically, the medical evidence showed a semilunar cartilage condition with frequent episodes of pain, "locking," and effusion into the joint. However, a higher rating is not warranted, as the medical evidence did not show shin splints requiring treatment for no less than 12 consecutive months, were unresponsive to surgery, and required either shoe orthotics or other conservative treatment, both lower extremities. Further, Veteran has repeatedly denied the use of assistive devices, and there was no evidence of a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. Therefore, the medical evidence supports a 20 percent rating, but no more. Importantly, in consideration of these findings, the Board has also thoroughly reviewed the available private and VA treatment records. No symptomatology has been noted that warrants a higher rating under the above outlined criteria. In granting a higher rating, the Board has considered the Veteran's lay statements regarding his symptoms as well as the evidence provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. In sum, after a careful review of the evidence of record, a 20 percent rating, but no more, for a right knee disability is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.