Citation Nr: 21012822 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-26 140 DATE: March 5, 2021 ORDER Restoration of a separate 10 percent rating for right knee meniscectomy under Diagnostic Code 5257 is granted. A 10 percent rating for right knee scars is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for right knee meniscal tear with degenerative arthritis is remanded. FINDINGS OF FACT 1. The 10 percent rating for right knee meniscectomy under Diagnostic Code 5257 had been in effect for over 20 years when it was terminated by the RO in December 2018. 2. The Veteran’s right knee scar is painful. CONCLUSIONS OF LAW 1. The criteria for a restoration of a separate 10 percent rating for right knee meniscectomy under Diagnostic Code 5257, have been met at all times from November 17, 1986. 38 U.S.C. § 1155; 38 C.F.R. § 3.951(b). 2. The criteria for a 10 percent rating for a right knee painful scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1984 to November 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran presented sworn testimony at a hearing before the undersigned in January 2021. 1. Entitlement to restoration of a separate 10 percent rating for right knee meniscectomy under Diagnostic Code 5257. In December 1986, the Veteran was granted service connection for right knee meniscectomy and assigned a 0 percent rating, effective November 17, 1986, under 38 C.F.R. § 4.71a, Diagnostic Code 5257. In July 1987, the Veteran was assigned 10 percent, effective November 17, 1986, under 38 C.F.R. § 4.71a, Diagnostic Code 5257, based on instability. In a December 2018 rating decision, the RO changed the rated disability from right knee meniscectomy to right knee meniscal tear with degenerative arthritis and assigned a 10 percent rating based on painful motion under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. Although his Diagnostic Code has since been changed, his initial rating under Diagnostic Code 5257 was in effect more than 20 years at the time the current claim was filed. In Murray v. Shinseki, 24 Vet. App. 420 (2011), a veteran who had been in receipt of a rating for more than 20 years when the RO changed the Diagnostic Codes under which the disability was rated and discontinued the original. The Court held that the original rating was protected, and the RO's actions constituted an impermissible reduction in a protected rating. In essence, the holding in Murray establishes that ratings under Diagnostic Codes 5003-5010 and 5257 represent distinct knee disabilities. Consistent with established precedent regarding ratings for knee disabilities, ratings for laxity, or more specifically, lateral instability, do not contemplate loss of range of motion, and ratings for loss of range of motion do not contemplate lateral instability. Thus, the RO's action in December 2018 was to terminate the rating for lateral instability, which had been in effect for more than 20 years, and to establish a new disability (functional loss due to painful motion) which was assigned a rating on the basis of limitation of motion. Therefore, consistent with the holding in Murray, the Board finds that the separate 10 percent rating for instability must be restored. In addition, at the January 2021 Board hearing, the Veteran indicated that a 10 percent rating for right knee instability would satisfy this aspect of his claim for a higher rating for his right knee disability. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The increased rating claim for painful motion of the right knee will be addressed in the Remand section below. 2. Entitlement to an initial compensable disability rating for right knee scars. The Veteran contends that he is entitled to an initial disability rating of 10 percent for painful right knee scars. At all times relevant to this appeal, the Veteran’s right knee scars have been rated as burn scars or scars due to other causes, not of the head, face or neck, that are not associated with underlying soft tissue damage under 38 C.F.R. § 4.118, Diagnostic Code 7802. Unstable or painful scars are evaluated under DC 7804. The minimum 10 percent disability rating is warranted for one or two scars that are unstable or painful. A 20 percent disability rating is warranted for three or four scars that are unstable or painful. The maximum 30 percent disability rating is warranted for five or more scars that are unstable or painful. See 38 C.F.R. § 4.118, DC 7804. The Veteran testified at the January 2021 Board hearing that his right knee scarring area, due to its location and friction with clothing, “has been painful and tender to the point where you have had to manipulate clothing or manipulate the way you walk or sit to try to keep the pressure and things off of that particular part, so you don’t have to go through that pain.” The Board notes that the Veteran is certainly competent to report pain. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports an initial 10 percent disability rating for the Veteran's painful right knee scars. Further, the Board further notes that the Veteran’s representative indicated at the January 2021 Board hearing that a grant of 10 percent would satisfy the claim. Because the Veteran limited his appeal to a10 percent initial evaluation for painful right knee scars, see, AB v. Brown, 6 Vet. App. 35, 38 (1993), and since the Board finds that the evidence supports entitlement to that rating, no discussion of ratings in excess of 10 percent is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for right knee meniscal tear with degenerative arthritis Diagnostic Code 5003-5260 is remanded. The Veteran testified at the January 2021 Board hearing that his symptoms of right knee meniscal tear with degenerative arthritis have worsened. Therefore, the Veteran should be afforded a new VA examination to assess the current extent and severity of his right knee meniscal tear with degenerative arthritis, including functional effects. See, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his back symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee meniscectomy. The examiner should provide a full description of the disability and report all signs and symptoms, including whether the Veteran has locking of the right knee. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.