Citation Nr: 21069108 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 03-08 282 DATE: November 17, 2021 ORDER 1. Entitlement to an extraschedular evaluation for limited extension, left knee degenerative joint disease (DJD) with meniscal/anterior cruciate ligament (ACL) tears (left knee disability) is denied. 2. Entitlement to an extraschedular evaluation for limited flexion of the left knee disability is denied. 3. Entitlement to an extraschedular evaluation for left knee instability is denied. FINDING OF FACT The Veteran's left knee disability is not manifested by symptoms that are so exceptional or unusual that the available schedular evaluations are inadequate. CONCLUSIONS OF LAW 1. The criteria for extraschedular rating for limited extension of the left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(b); see Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). 2. The criteria for an extraschedular rating for limited flexion of the left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(b); see Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). 3. The criteria for an extraschedular rating for left knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(b); see Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from March 1987 to July 1990. The claims of entitlement to extraschedular evaluations for the service-connected left knee disability were remanded by the Board in January 2016 and October 2016. In February 2017, the claim was referred to the Director of Compensation Service (Director) for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) by the Appeals Management Center (AMC). In September 2017, the Director denied entitlement to an increased evaluation in excess of 30 percent for subluxation and lateral instability of the left knee and in excess of 30 percent for limitation of extension of the left knee. In April 2015, the Board remanded the claim of entitlement to a separate evaluation for the left knee disability based upon locking of the knee and/or other manifestations of the semilunar cartilage for further development. In a January 2016 decision, the Board denied entitlement to a separate evaluation. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). A November 2017 Panel Decision from the Court reversed the Board's finding that the Veteran's pain and swelling associated with his left knee disability were compensated by his 30 percent evaluation under Diagnostic Code (DC) 5257 and remanded the Veteran's left knee meniscal disability claim. The Court found that the Board did not properly assess whether the Veteran's pain, swelling, popping, locking, and grinding associated with his left knee meniscal disability would have been compensated by his current left knee evaluation under DC 5261. Specifically, the Court found that a determination as to whether a separate evaluation of a meniscal disability under either DC 5258 or 5259 was warranted based on the facts of the case or whether such evaluation would constitute impermissible pyramiding was necessary. In July 2018, the Board remanded the claim for entitlement to a separate evaluation for the left knee disability based upon locking of the knee and/or other manifestations of the semilunar cartilage for further development to comply with the Court's directives. As it did not appear that the remand directives had been fulfilled, to include adding updated treatment records and scheduling an examination of the Veteran's left knee, and the claim for a separate evaluation adjudicated, the claim of entitlement to an extraschedular evaluation for the left knee disability was remanded by the Board in October 2018, pending adjudication of the claim for a separation evaluation of the left knee disability, as these issues were inextricably intertwined. In an August 2020 decision, the Board denied entitlement to a separate evaluation for the left knee disability based upon locking of the knee and/or manifestation of the semilunar cartilage. As such, the Veteran's claims for extraschedular evaluations for the left knee disability, as listed on the cover page, are back before the Board. Most recently, the Board remanded the claims for a new VA examination to evaluate the current severity of the Veteran's left knee disability. The Veteran was afforded a VA examination in March 2021 for the left knee. There was substantial compliance with the Board's remand directives to decide the claims on appeal at the present time. See Stegall v. West, 11 Vet. App. 268 (1998). Following the issuance of a supplemental statement of the case (SSOC) in May 2021, the Veteran was afforded a VA examination of the knees in June 2021 in conjunction with a separate claim for an increased rating of the service-connected right knee disability. While the primary focus of this examination was for the increased rating claim for the right knee disability, the Veteran's left knee was also examined at this time. This VA-generated medical evidence has not yet been reviewed by the Agency of Original Jurisdiction (AOJ), however, the Veteran, through his representative, in a March 2021 appellate brief, waived AOJ review in the first instance. Thus, the Board will proceed with adjudication of the Veteran's claims at this time. Increased Rating 1. Entitlement to an extraschedular evaluation for left knee limited extension. 2. Entitlement to an extraschedular evaluation for left knee limited flexion. 3. Entitlement to an extraschedular evaluation for left knee instability. Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id. The second element requires that there be evidence of other related factors, such as marked interference with employment or frequent periods of hospitalization. Id. If either the first or the second element is not met, extraschedular consideration is not warranted. Chudy v. O'Rourke, 30 Vet. App. 34, 38-39 (2018). The first element is only satisfied when there is evidence of symptoms that are truly unusual or exceptional. Long v. Wilkie, 33 Vet. App. 167 (2020). The analysis of whether the first element for referral is met centers on the Veteran's full symptomatology, and whether that symptomatology results in a level of disability so exceptional that the rating schedule is not capable of contemplating it. Id. Extraschedular consideration is simply not applicable to claims that are evaluated properly but ultimately denied under the schedular ratings; it applies only after conventional rating tools prove inadequate to evaluate a veteran's symptomatology in the first place due to its exceptional nature. Id. In determining whether a veteran's disability picture is exceptional, and therefore whether the first element is met, several factors may be considered. These include whether all schedular ratings options have been considered and deemed inadequate, whether the alleged symptoms or symptoms may be compensated under the rating schedule, and whether the alleged symptoms or manifestation may be attributed to the service-connected disability. The Board need only consider or discuss possible alternative ratings if they are raised by the claimant or reasonably raised by the record. In this case, VA examinations throughout the period on appeal reflect that the Veteran's left knee disability was manifested by pain, limitation of motion, and instability. Specifically, the June 2021 VA examiner noted that limited flexion caused difficulty with walking, standing up, and climbing stairs and that the Veteran could not stand or walk for prolonged periods of time. The examiner also noted similar functional impairment in the March 2021 examination report. Following examination in June 2019, the examiner documented that the Veteran had a diagnosis of left knee meniscal and anterior cruciate ligament (ACL) tears, status-post repeat surgical repairs. The examiner listed surgeries including meniscectomy, ACL reconstruction, arthroscopy, synovectomy, meniscectomy, and debridement in 1990, 2001, 2009, and 2015, respectfully, with residual signs of symptoms due to the surgeries, including instability, loss of range of motion, and recurrent effusion. The examiner specifically noted that findings supported knee instability and recurrent effusion. The August 2015 VA examiner documented that the Veteran had a meniscus (semilunar cartilage) condition but found no current symptoms of the left side. He noted a meniscectomy, ACL reconstruction, meniscectomy, and debridement in 1990 and 2015. The Veteran reported current symptoms at the time of pain and stiffness. The April 2013 examination report reflects the Veteran's report of a "deteriorating" left knee meaning "lack of movement and pain," difficulty bending, knee "giving out" and "popping out," swelling, locking, and falls. The Veteran's lay statements throughout the period on appeal also attest to symptoms of pain, limitation of range of motion, functional loss due to weakness, fatigability, incoordination or pain on movement of a joint, and limitation of motion due to pain on use, including during flare-ups. See March 2021 appellate brief. The Veteran contends that he has marked interference with his daily activities and an adverse effect on employment. Id. However, all of the documented symptoms are contemplated by the rating criteria for the Veteran's left knee disability, which has ratings under multiple Diagnostic Codes, including hyphenated Diagnostic codes. 38 C.F.R. § 4.71a, Diagnostic Codes (DCs), 5257, 5929-5260, 5929-5260. The Veteran was specifically rated for both limitation of flexion and extension, (DC 5260, limited flexion; and DC 5261, limited extension) and instability (DC 5257) during the period on appeal. Moreover, in an August 2020 Board decision, the Board found that while DC 5259 is applicable to the disability picture of the Veteran's left knee based on semilunar cartilage removal that is symptomatic, a separate rating may not be assigned because the Veteran's symptomatology, mainly, limitation of motion, instability, "locking" and effusion, has been already adequately contemplated by the ratings assigned. The symptomatic residuals associated with the Veteran's multiple surgeries, including meniscectomies, were already compensated in the assigned 30 percent rating under DC 5257 for severe impairment, the highest available schedular rating for instability, and the 50 percent rating for limitation of flexion and the 10 percent rating for limitation of flexion, and to assign a separate rating under DC 5259 for symptomatic removal of the semilunar cartilage would constitute pyramiding. Notably, in Doucette v. Shulkin, the Court made clear that a diagnostic code need not list every word or type of symptom to contemplate a type of functional effect. For instance, problems with hearing sounds in crowds, televisions or telephones are not listed in the diagnostic code for hearing loss but are nonetheless contemplated because they are the actual effects of the hearing loss in daily life. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Here, in the context of a knee extraschedular rating claim, the Doucette decision by extension shows that the symptoms of the Veteran's left knee disability and any functional effects, are contemplated by the rating schedule for evaluating the disability. The Veteran's difficulty walking, standing up, climbing stairs, and inability to stand or walk for prolonged periods of time were the actual effects of his left knee disability in daily life that consisted of symptoms of limitation of motion, instability, "locking" and effusion, which the Veteran is compensated for by the ratings assigned during the appeal period. As of the June 2021 VA examination, the Veteran was employed in outdoor maintenance and reported that he missed up to one week of work in the preceding 12 months. The Veteran also indicated that he had to take frequent breaks that decreased concentration and productivity. He had previously reported that he was the supervisor of the grounds crew but still had to go out and perform the duties because he had a small crew during an August 2011 Board hearing. While the Veteran has functional impairment due to his left knee disability, to the extent that the Veteran claims an adverse effect on employment, a high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, and the Veteran has combined ratings of 40 percent, 50 percent, and 70 percent for the service-connected left knee disability during the appeal period. The Veteran has been employed throughout the appeal period. The Veteran was also awarded service connection for major depressive disorder, which was awarded based on being associated with the service-connected left knee disability. Thus, the reports of decreased concentration as a result of his knee symptoms are contemplated by the 30 and 50 percent ratings for this service-connected disability. Neither the Veteran nor his representative have identified left knee symptoms that are not already contemplated by the ratings assigned throughout the period on appeal. Ultimately, the instant case involves a situation where the Veteran's symptoms are contemplated under the applicable DC's governing the knee, and therefore extraschedular ratings are not warranted in this case. Long, 33 Vet. App. 167. As the evidence does not reflect that the Veteran's left knee disability picture is so unusual or exceptional so as to render the rating schedule inapplicable, increased ratings on an extraschedular basis are not warranted for the left knee disability. Id.; 38 C.F.R. § 3.321(b). As the preponderance of the evidence is against the claims for extraschedular ratings, the benefit-of-the-doubt rule is not applicable. 38 C.F.R. §§ 4.3, 4.7. For these reasons, the claims for entitlement to extraschedular ratings for the left knee disability are denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cheng, 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.