Citation Nr: 21011154 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 07-32 159 DATE: March 1, 2021 ORDER For the entire rating period on appeal, a separate 10 percent (maximum) rating for symptomatic removal of the semilunar cartilage of the right knee is granted. REMANDED Entitlement to a rating in excess of 10 percent for painful limitation of motion associated with right knee chondromalacia of the patella and osteoarthritis is remanded. Entitlement to a separate, compensable rating for right knee instability prior to December 26, 2019, and in excess of 10 percent, thereafter, is remanded. For the appeal period prior to February 5, 2016, entitlement to a total disability rating based on individual unemployability (TDIU), is remanded. FINDING OF FACT For the entire rating period on appeal, the Veteran has had symptomatic removal of the semilunar cartilage of the right knee. CONCLUSION OF LAW For the entire rating period on appeal, the criteria for a maximum 10 percent rating for symptomatic removal of the semilunar cartilage of the right knee are met. 38 C.F.R. §§ 1155, 5107, 7104 (2017); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5259 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1999 to May 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St Petersburg Florida, which, in pertinent part, granted the Veteran’s claim for service connection for right knee chondromalacia of the patella and assigned an initial 10 percent rating. In June 2008, the Veteran contacted the RO and requested that her July 2008 hearing be cancelled. Therefore, her request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704(e). In a March 2015 decision, the Board denied entitlement to an initial rating in excess of 10 percent for a right knee disability, to include chondromalacia of the patella and osteoarthritis. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In an October 2015 Order pursuant to a Joint Motion for Remand (JMR) filed by the Veteran and the Secretary of the VA, the Court vacated and remanded the Board’s decision. In December 2015, February 2018, and November 2019 the Board remanded the matter for further development. The Board observes that there has been substantial compliance with the remand directives and the claim is prepared for adjudication. The Board further notes that the Veteran has been awarded a TDIU effective February 5, 2016. See May 2017 rating decision. Notably, the Veteran’s appeal has been pending prior to February 2016. As such, the Board will consider, as part and parcel of the increased rating claims on appeal, whether entitlement to a TDIU is warranted prior to February 5, 2016. Rice v. Shinseki, 22 Vet. App. 447 (2009). Disability Ratings Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Right Knee Disability The Board finds that, for the entire rating period on appeal, a separate 10 percent (maximum) rating is warranted under Diagnostic Code 5259, which addresses removal of symptomatic semilunar cartilage. Diagnostic Code 5259 provides for a maximum 10 percent rating for symptomatic removal of the semilunar cartilage. In this case, the Veteran has been shown to have undergone removal/debridement of her right knee cartilage in 2004. The VA examinations of record discuss the Veteran having had meniscal repair in 1995 and a cartilage debridement/synovectomy in 2004. See e. g., March 2017 VA knee examination. The Veteran has also been found to have residual symptoms of swelling, popping, and locking. See e. g., December 2005 VA examination report (Veteran reported intermittent swelling in right knee); see also March 2017 VA examination (Veteran indicated that her knee “locks”). The Board finds that some of these symptoms associated with the Veteran’s meniscectomy and cartilage debridement are not contemplated by the other disability ratings for instability and limitation of motion, to include swelling and locking. As such, a separate 10 percent rating is warranted for the appeal period on appeal under Diagnostic Code 5259. The Board observes that, pursuant to this decision, the Veteran is now in receipt of the maximum schedular rating allowable for removal of the semilunar cartilage under DC 5259 for the entire rating period on appeal. As such, a rating in excess of 10 percent is not available under this code. As it pertains to the Veteran’s painful limitation of motion and instability the right knee, those issues are addressed in the remand section below. REASONS FOR REMAND The Board finds that a remand is warranted to obtain outstanding, relevant VA treatment records. During a March 2017 VA knee examination report, the examiner referenced a May 23, 2016 VA orthopedic treatment record from the “NH Jacksonville/ortho.” At that time, it was noted that the Veteran had been using a knee brace, with no improvement. The Veteran also complained of popping, locking, and buckling in the right knee. A review of the current evidence of record does not show that this VA treatment record has been obtained and associated with the claims file. Therefore, a request for all VA treatment records from the Jacksonville Naval Hospital and the Jacksonville VA clinic should be made on remand. These records appear to specifically relate to the severity of the Veteran’s right knee disability, to include relevant evidence associated with instability of the knee. Accordingly, a remand is warranted. The matters are REMANDED for the following actions: 1. Obtain ALL outstanding treatment records from the Jacksonville Naval Hospital and the Jacksonville VA clinic. Specifically, please obtain records surrounding the May 23, 2016 ortho visit as referenced in the March 2017 VA knee examination report. 2. Then, readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adams Hill, Denise 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.