Citation Nr: 21071342 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 10-14 797 DATE: November 30, 2021 ORDER Entitlement to a separate 20 percent rating, but no higher, for right knee semilunar cartilage dislocation (also known as "right knee meniscal tear") is granted. Entitlement to a separate compensable rating for left knee semilunar cartilage dislocation (also known as "left knee meniscal tear") is denied. FINDINGS OF FACT 1. A November 28, 2007, private magnetic resonance imaging (MRI) of the right knee revealed a small horizontal cleavage tear at the posterior horn of the medial meniscus. 2. The Veteran has a right knee meniscal tear with frequent episodes of joint "locking," intermittent acute pain of short to intermediate duration, joint effusion, intermittent catching or giving way, and swelling at times. 3. An October 22, 2012, VA MRI of the left knee revealed a small tear at the posterior horn of the medial meniscus. 4. The Veteran had a left knee meniscal tear with frequent episodes of joint pain and effusion, but no "locking" due to the meniscal tear. 5. On February 23, 2018, the Veteran had a total knee replacement of the left knee. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a separate rating of 20 percent, but no higher, for a right knee meniscal tear are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5258. 2. The criteria for a separate rating for a left knee meniscal tear are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1980 to August 2001. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which continued 10 percent ratings for right knee instability, degenerative joint disease (DJD) of the right knee with crepitation, and DJD of the left knee with crepitation. The claims were before the Board in December 2018. At that time, the Board denied a rating in excess of 10 percent prior to November 13, 2013; and increased the rating to 20 percent, but no higher, thereafter for DJD of the right knee with crepitation. The Board denied a rating in excess of 10 percent for right knee instability, and granted a separate rating of 20 percent, but no higher, for right knee limitation of extension from April 3, 2018. It also denied a rating in excess of 10 percent prior to November 28, 2012; in excess of 10 percent from January 1, 2013, to September 9, 2014; and in excess of 20 percent from November 1, 2014, to February 23, 2018, for DJD of the left knee with crepitation. A separate rating of 10 percent, but no higher, was granted for left knee instability. The Veteran appealed the December 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court), specifically regarding the denial of separate ratings under DC 5258 for both knees. In September 2019, the Court granted a Joint Motion for Partial Remand, and vacated the December 2018 Board decision to the extent that it denied ratings for the right and left knees under DC 5258 for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joints. The issues were returned to the Board, and remanded by the Board for further development in April 2020. The Board again remanded the claims in March 2021 in order to address the conflicting and ambiguous evidence. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Higher Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. A veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Issues 1-2: Entitlement to separate ratings for right and left knee semilunar cartilage dislocations In his September 2021 brief, the Veteran maintained that he was entitled to separate ratings for right and left knee semilunar cartilage dislocations. However, he then stated that DC 5258 could not be applied as "this would constitute pyramiding under 38 C.F.R. § 4.14." Specifically, he contended that assigning a separate rating under DC 5258 in combination with current ratings for DC 5257 and/or DC 5260 would violate the prohibition against pyramiding as his meniscus symptomatology, including locking, pain, and effusion, were already contemplated and compensated by his current disability ratings under DC 5257 and DC 5260. The Veteran is currently service-connected for several right and left knee disabilities. Specifically, he is awarded a 10 percent rating for right knee instability as of September 1, 2001; 10 percent rating as of September 1, 2001, and 20 percent rating effective November 13, 2013, for DJD of the right knee with crepitation; and a 20 percent rating for right knee limitation of extension as of April 3, 2018. His DJD of the left knee was service connected at 10 percent as of September 1, 2001, which was increased to 100 percent from November 28, 2012, to December 31, 2012, and from September 10, 2014, to October 31, 2014. The left knee DJD was then increased to 20 percent, effective November 1, 2014; to 100 percent, effective February 23, 2013 due to total knee replacement; and to 30 percent from April 1, 2019. He also has a separate rating of 10 percent for left knee instability, effective August 26, 2008; 0 percent from November 28, 2012; 10 percent from January 1, 2013; 0 percent from September 10, 2014; and 10 percent from November 1, 2014, to February 22, 2018. Evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.14 ; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Therefore, the claims herein were previously remanded by the Board in order to determine whether the Veteran had or has right and/or left knee semilunar cartilage dislocations that warrant a separate rating under DC 5258. Law DC 5258 rates on the basis of dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. A 20 percent rating is the only rating available under that code. The Board notes that, 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. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021, the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. However, DC 5258 remains unchanged by the new regulations, which are therefore not discussed. Evidence Service treatment records (STRs) are vague in terms of whether the Veteran had a right and/or left knee meniscal tear. They reflect an assessment of left knee DJD with probable meniscal tear in March 1993; an assessment of left knee pain, exacerbated DJD vs. medial meniscal tear in May 1993; and an assessment of left knee DJD or medial meniscal tear in January 1994. A September 2003 VA examination report reflects a diagnosis of bilateral DJD with crepitation. The Veteran reported being diagnosed with patellofemoral pain syndrome and DJD of both knees. He complained of occasional locking, popping, weakness, and swelling in both knees. He stated that his knees felt unstable as if they were going to give way. On examination, no meniscal issues were noted. A November 28, 2007, private MRI of the right knee revealed a small horizontal cleavage tear at the posterior horn of the medial meniscus and minimal joint effusion. A January 2009 VA examination report reflects diagnoses of right knee instability and bilateral DJD with crepitation, as well as pain, weakness, stiffness, swelling, instability, giving way, "locking," and lack of endurance. The Veteran experienced moderate swelling during flare-ups every three to four months that lasted three or four days to a week. In August 2009, the Veteran stated that at his VA examination, he reported pain and trouble doing simple daily chores the past two weeks. He experienced a lot of pain in both knees, which had been giving out for the past 18 months. On six or seven occasions, he had to grab onto something to keep from falling. His knees would lock without warning, and he had a lot of popping in both knees. He reported that his bilateral DJD was getting worse, and he was experiencing pain more often. The examiner tested his range of motion (ROM), and the Veteran stated that he could not bend either knee far at all without experiencing a lot of pain. There was also a lot of popping in his knees during ROM testing. He stated that he was currently experiencing a lot of popping, pain, and instability in his knees. He contended that his recent x-rays and treatment records demonstrate that his DJD was progressively getting worse. An October 2009 VA examination report reflects review of the Veteran's claims file and diagnoses of osteoarthritis of the right knee with cartilage defect and small tear at the posterior horn of the medial meniscus, and osteoarthritis of the left knee. On examination, the Veteran had no swelling bilaterally. An October 22, 2012, VA MRI of the left knee revealed moderately prominent degenerative change at the patellofemoral articulation, moderate degenerative change of the medial joint compartment, and horizontal tear posterior horn medial meniscus. A subsequent November 2012 VA treatment record reflects a complaint of intermittent pain in the left knee and a diagnosis of a torn medial meniscus of the left knee. At the end of November 2012, he had an arthroscopy of the left knee with debridement of the medial lateral meniscus. A November 2013 VA examination report reflects review of the Veteran's claims file and diagnoses of bilateral patellofemoral syndrome as of 2001, bilateral meniscal tears as of 2007 and 2012, and DJD as of 2001. The Veteran reported being found in 2001 to have bilateral knee degenerative changes and patellofemoral syndrome. He reported a worsening of knee pain over the years, and was prescribed hinged bilateral knee braces. Despite meniscal surgery in 2013, he continued to have pain with walking, standing, squatting, and running. The Veteran had bilateral meniscal tears with frequent episodes of joint pain and effusion bilaterally. He had a meniscectomy on the left knee in November 2012 with residual pain. MRIs demonstrated patellofemoral degenerative changes and torn posterior horn meniscal tears in the right knee in November 2007 and in the left knee in October 2012. A May 2014 VA treatment record reflects a complaint of chronic right knee pain with popping, pain, swelling, "giving way," and occasional locking when ambulating. He was well-known to this clinic for left knee pain. A September 2014 private operative report reflects diagnoses of both medial and lateral meniscal tears and chondromalacia patella. The Veteran underwent a chondroplasty of severe grade III and IV chondromalacia of the patellar trochlear articulation and arthroscopic debridement of the posterior horn of both the medial meniscus and lateral meniscus of the left knee. An October 2017 VA examination report reflects diagnoses of bilateral DJD with crepitation and right knee instability. Surgery was noted in 2012 and 2014 with another surgery scheduled for October 2017 on the left knee to repair a torn meniscus. However, the examiner stated that the Veteran did not have nor did he ever have a meniscus condition before finding that the Veteran had meniscectomies in 2012 and 2014 on the left knee with residuals of popping and grinding, swelling, pain on exertion, and recurrent effusion needing drainage. An October 2017 addendum reflects that the examiner reviewed the VA treatment records and found that the current diagnoses of bilateral DJD with crepitations and right knee instability to be consistent with the medical history and diagnoses as reported in his VA records. A February 23, 2018, private treatment record reflects left knee total knee arthroplasty and suprapatellar synovectomy with a diagnosis of left knee bone-on-bone osteoarthritis. An April 2018 VA examination report reflects review of the Veteran's claims file and diagnoses of right knee instability, bilateral degenerative arthritis, and left knee total arthroplasty in April 2018. The Veteran reported that the left knee had been buckling. He had had surgery for meniscus repair in October 2017, a lot of swelling, and locking in the left knee on occasion. He complained of throbbing pain, swelling, weakness, locking up, buckling, and stiffness. The Veteran had a meniscus condition with frequent episodes of joint locking, pain, and effusion in the right knee and frequent episodes of joint pain and effusion in the left knee. He had a total left knee replacement in February 2018 with chronic residuals of severe painful motion or weakness. A September 2020 VA examination report reflects review of the Veteran's claims file and diagnoses of bilateral knee strain as of 1984, bilateral patellofemoral pain syndrome as of 2001, and bilateral degenerative arthritis as of 2004. The Veteran reported an onset of knee problems while playing basketball in about 1989. X-rays in 2004 noted mild arthritis in the right knee, and severe left patellofemoral pain syndrome arthritis. He had left knee surgery for arthroscopic debridement in 2012, 2014, and 2017; and a total left knee replacement in 2018. His left knee disability had not progressed since the total knee replacement, but the right knee was getting worse with pain with weight-bearing, pain with long-distance walking, and crepitus. On examination, he had tenderness medially and over the kneecap, pain with weight-bearing, and crepitus in the right knee. His left knee swelled up from time to time and could limit flexion. He had a meniscal tear with frequent episodes of joint locking in the left knee only, which had been treated with surgeries. He had a total knee replacement of the left knee on February 23, 2018, with intermediate degrees of residual weakness, pain, or limitation of motion, specifically slightly restricted motion and some posterior swelling. He had arthroscopic surgeries in 2012, 2014, and 2017. However, the examiner stated that the residual symptoms were not due to the meniscus but rather due to the total knee replacement. The examiner opined that the Veteran's knee condition was at least as likely as not incurred in or caused by service. Specifically, his knee problems stemmed from repeated injuries in service, specifically an injury in 1984. By 2001, he had patellofemoral pain syndrome documented in his records, and by 2014 arthritis had set in with episodes of locking. The examiner did not find any evidence of instability. The Veteran had surgery in the left knee for meniscus and three surgeries to address it. He had a total knee replacement in the left in 2018 and continued to have residuals of pain, crepitation, and swelling on and off in the right. Thus, the examiner found that the Veteran's cartilage condition stemmed from injuries playing basketball in service. An April 2021 VA examination report reflects review of the Veteran's claims file and diagnoses of bilateral knee strain, right knee meniscal tear as of 2007, left knee meniscal tear as of 2012, and bilateral osteoarthritis. The Veteran had some arthritis of the knees noted in 1993. A 2007 MRI of the right knee showed a medial meniscus tear. The 2009 VA examination report revealed arthritis bilaterally and the tear of the medial meniscus. A 2012 MRI showed a tear of the left knee medial meniscus. He had more severe pain in the left knee, and had surgeries in 2012, 2014, and 2017 for the meniscus and a total knee replacement of the left knee in 2018. The right knee had pain medially with a lot of crepitation and a "catch," which also occurred at times in the left knee even with the total knee replacement. The Veteran reported flare-ups of the knees of moderate severity with the right knee having pain with weight-bearing with flexion and with ballistic impact. The left knee was not as severe but had an intermittent catch. He had a history of instability or recurrent subluxation of the knee with the right knee catching from time to time due to a meniscus pathology and also catching at times on the left. He had a history of frequent effusion of the knee with both knees swelling from time to time. The Veteran had a meniscal tear in the right knee with frequent episodes of joint "locking" and joint effusion with intermittent catch (give way) and swelling at times. The Veteran did not have a meniscal condition in the left knee, but had a meniscectomy in 2012 and again in 2014 with a total knee joint replacement in 2018 with intermediate degrees of residual weakness, pain, limitation of motion, and intermittent catch in the left knee. The examiner stated the additional conditions were directly due to or related to the service-connected diagnoses. Specifically, the bilateral knee strain, degenerative arthritis, and right knee meniscal tear were progressions over time from service and daily training. The examiner opined that the Veteran's left semilunar cartilage dislocation was at least as likely as not aggravated beyond its natural progression by service-connected disabilities. He stated that the bilateral meniscal tears started off with the bilateral knee degeneration and had prior injuries during service in 1993 with a long history of left knee condition noted. With meniscus surgery, there would be subtle medial instability, which led to accelerated and hence the total knee replacement. Therefore, the Veteran's bilateral knee strain, meniscal tear, and bilateral knee osteoarthritis were at least as likely as not aggravated beyond their natural progression by the Veteran's disabilities. The examiner explained that the etiology of the bilateral knee conditions was weight-bearing and twisting while playing basketball. He stated that the Veteran's ongoing knee problems were noted since 1984 from basketball in the Army. A 2007 record noted a right knee torn meniscus. By 2012, an MRI showed a left knee meniscus tear, for which he had his first arthroscopic knee surgery in 2012. Subsequently in 2013, he had bilateral meniscus tears, which was consistent with his history. He had a second left knee surgery in 2014, another left knee arthroscopy in 2017, and a left knee total knee replacement. The entire history was most consistent with bilateral knee pathology starting off in 1984. Currently he presented clinically with a medial right knee meniscus tear with catch and recurrent effusions. The etiology of both knee conditions is basketball impact and twists. In an August 2021 VA addendum, the examiner opined that the right knee semilunar cartilage dislocation was at least as likely as not proximately due to or the result of the Veteran's service-connected disability. The examiner restated verbatim the September 2020 and April 2021 VA opinions before stating that it was clear from the opinions that the right meniscus/semilunar cartilage tear was included in those opinions. It was at least as likely as not that the right meniscal tear had its nexus in service with associated symptoms including a "catch" or locking sensation, intermittent acute pain of short to intermediate duration with locking sensations and, at least in part, increased joint effusion. Crepitance would be due to a combination of the diagnoses. Determining the relative contribution for joint effusion and crepitance would be speculative. Baseline crepitance and effusion at least as likely as not would be secondary to the degenerative changes with acute intermittent crepitance, pain, and effusion secondary to the meniscal component. There was no data to specifically answer as to frequency or duration without complete speculation other than to say "frequent locking with associated pain and increased effusion." As all right knee conditions were more likely than not service-connected, it was the sum of the symptoms determining the disability. Analysis Despite the Veteran's conflicting assertions and statements in his September 2021 brief, based on all of the evidence of record, the Board finds that a separate rating of 20 percent is warranted under DC 5258 for a right knee meniscal tear. However, a separate rating is not warranted for a left knee meniscal tear. Right Knee Meniscal Tear The evidence demonstrates that a right knee meniscal tear was confirmed by the November 28, 2007, private MRI. Additionally, the April 2021 and August 2021 VA examiners found that the Veteran's right knee meniscal tear was related to service, specifically impact and twists while playing basketball during service. The April 2021 examiner stated the opinion in another way, that the service-connected disabilities at least as likely as not aggravated the right knee meniscal tear. Subsequently, the August 2021 VA examiner clarified that it was at least as likely as not that the Veteran's right knee meniscal tear was related to service. Moreover, the Veteran's right knee meniscal tear involved frequent episodes of joint pain, locking, and effusion as well as catching and swelling. The November 2013 VA examiner found a meniscal tear with frequent episodes of joint pain and effusion. The April 2018 VA examiner found a right knee meniscal tear with frequent episodes of joint locking, pain, and effusion. The April 2021 VA examiner stated that the Veteran had a right knee meniscal tear with frequent episodes of joint locking, effusion, catching, and swelling. The August 2021 VA examiner stated that the symptoms associated with the right knee meniscal tear included catching or a locking sensation, intermittent acute pain, and increased joint effusion. Therefore, the evidence demonstrates the Veteran's right knee meniscal tear is related to service and his service-connected disabilities. Accordingly, a separate rating of 20 percent is warranted for a right knee meniscal tear with frequent episodes of locking, pain, and effusion into the joint under DC 5258. Left Knee Meniscal Tear Despite suggestions and indications of a left knee meniscal tear during service, a diagnosis of a left knee meniscal tear was confirmed by the October 22, 2012, VA MRI. Additionally, the evidence demonstrates that the Veteran's left knee meniscal tear is related to service. Although the September 2020 VA examiner referred generally to the Veteran's "knee condition" in the positive opinion, rather than addressing each diagnosis individually, the examiner noted that the Veteran's cartilage condition stemmed from the in-service basketball injuries. The April 2021 VA examiner also opined that the etiology of both knee meniscal tears was impact and twists from playing basketball during service, which led to a long history of bilateral knee symptoms and diagnoses. The examiner stated the opinion in another way, that the service-connected disabilities at least as likely as not aggravated the left knee meniscal tear. The Board notes that on February 23, 2018, the Veteran had a total left knee replacement. Unfortunately, the evidence between October 2012 (the date of the left knee MRI) and February 2018 (the date of the total left knee replacement) does not demonstrate that the left knee meniscal tear involved frequent episodes of "locking," pain, and effusion into the joint, as required by DC 5258. Rather, the November 2013 and April 2018 VA examiners found a meniscal tear with frequent episodes of joint pain and effusion, without any "locking." The Board acknowledges that the September 2003 VA examination report reflects the Veteran's report of occasional locking in both knees. However, this was reported prior to any objective evidence confirming a left knee meniscal tear and was rather due to the Veteran's other left knee diagnoses. Additionally, the September 2020 VA examiner stated that the Veteran had frequent episodes of joint locking in the left knee only with continuing residuals due to the total knee replacement. The April 2021 VA examiner stated that the Veteran had a total knee replacement with residuals symptoms, which is addressed by the rating assigned under DC 5055. As such, the evidence taken as a whole demonstrates that any "locking" in the left knee was either due to other left knee diagnoses that existed prior to the development of his left knee meniscal tear in October 2012 or as a residual of his February 2018 total left knee replacement. Therefore, the evidence demonstrates the Veteran's left knee meniscal tear is related to service. However, a separate compensable rating for a left knee meniscal tear is not warranted as it does not involve frequent episodes of "locking," pain, and effusion into the joint as required under DC 5258. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee, Associate 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.