Citation Nr: 21007016 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-19 470 DATE: February 8, 2021 ORDER Entitlement to a separate compensable rating for left knee meniscal tears prior to July 8, 2018, is denied. FINDING OF FACT Prior to July 8, 2018, the Veteran’s left knee meniscal tears were not manifested by symptoms distinct from patellofemoral pain syndrome. CONCLUSION OF LAW Prior to July 8, 2018, the criteria for a separate 20 percent rating for left knee meniscal tears are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5258. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1994 to January 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which granted, in relevant part, service connection for left knee patellofemoral pain syndrome and assigned a noncompensable rating, effective May 17, 2012. In January 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In January 2018, the Board remanded the appeal for further development. In a July 2019 rating decision, the RO increased the Veteran’s ratings for left knee patellofemoral pain syndrome to 10 percent, effective May 17, 2012. In an April 2020 decision, the Board granted a separate rating for left knee meniscal tears and assigned a 20 percent rating, effective July 8, 2018, and remanded the appeal for a compensable rating prior to July 8, 2018. The RO implanted the partial award in a July 2020 rating decision. Increased Ratings Entitlement to a separate compensable rating for left knee meniscal tears prior to July 8, 2018, is denied. I. General Rating Principles and Rating Criteria Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. Here, the Veteran’s left knee meniscal tears are currently rated under DC 5258. DC 5258 provides a 20 percent rating for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. II. Analysis The Veteran is currently in receipt of a 20 percent rating from May 17, 2012, for his service-connected left knee patellofemoral pain syndrome manifested by painful limitation of flexion and a separate 20 percent rating from July 8, 2018, for his left knee meniscal tears. The current appeal period before the Board is from May 17, 2012, the date of award of service connection for his left knee patellofemoral pain syndrome. However, as all other manifestations of the Veteran’s left knee disability were discussed in a previous Board decision, only the limited appeal period from May 17, 2012, to July 8, 2018, specifically for his left knee meniscal tears under DC 5258 will be addressed below. Here, in July 2020, the RO requested the Veteran submit any additional relevant outstanding medical evidence, not already of record, including specifically any private treatment records, including the EMG study from Kaiser Permanente referenced in the March 2018 VA examination report and also requested him to fill out and submit VA Forms 21-4142 and VA Form 21- 4142a if he wished the VA to obtain such records. He did not return either form or submit the requested information. In this regard, the Board emphasizes that the duty to assist is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000). Absent cooperation from the Veteran, the Board must evaluate the other evidence of record addressing his left knee meniscal tears. To this end, the Board finds that separate 20 percent rating under DC 5258 from July 8, 2018, and no earlier, is appropriate as currently assigned, as this is the date of a magnetic resonance imaging (MRI) report that first notes lateral and meniscal tears and small joint effusion, coupled with the Veteran’s report of popping, grinding, and swelling in his left knee in the March 2018 VA examination report. There is no other medical evidence referencing meniscal tears prior to July 8, 2018, thus, a compensable rating is not warranted prior to this date under DC 5258 and the claim must be denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante 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.