Citation Nr: 21012846 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 06-26 058 DATE: March 5, 2021 ORDER Entitlement to a rating in excess of 20 percent for a post-operative medial meniscotomy of the right knee is denied. FINDING OF FACT During the period on appeal, the Veteran’s right knee did not manifest with ankylosis; flexion limited to 45 degrees, or less; extension limited to 10 degrees, or less; recurrent subluxation, or lateral instability; malunion; loose motion; or Genu recurvatum. CONCLUSION OF LAW The criteria for a rating greater than 20 percent for a right knee disability has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a; Diagnostic Codes (DC) 5258 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from June 1983 to November 1985. The Board notes that service treatment records suggested that the Veteran entered service in 1979; however, the file does not contain a Certificate of Release or Discharge from Active Duty (DD 214) showing this earlier service. Despite an earlier DD 214 not being available, in the available DD 214 for the period of June 1983 to November 1985, the Veteran was stated to have prior years of active duty service, eight weeks of education in September 1979, and a total of five years and nine months of service as a wheel vehicle mechanic. See Certificate of Release or Discharge From Active Duty received April 2016. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2005 and February 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As to the Veteran’s entitlement to a rating in excess of 20 percent for a post-operative medial meniscotomy of the right knee, in March 2018, the Board remanded the claim for an adequate VA examination. In October 2018, the Veteran reported that he missed his scheduled VA examination because he had a previous confirmed appointment already set for that date. See VA 21-0820 Report of General Information received October 2018. The Veteran then failed to show for the next scheduled VA examination. The Veteran through his representative reported that as the result of a stroke the Veteran was unable to attend the examination. See Exam request dated May 2019; VA 21-4138 received May 2019. The Veteran was sent communications about rescheduling his examination. See Subsequent Development Letter received July 2019; Email Correspondences dated in August 2019. The Veteran did not respond to requests to reschedule the examination. In April 2020, a Supplemental Statement of the Case (SSOC) was sent to the Veteran, denying the entitlement to a rating in excess of twenty percent for a post-operative medial meniscectomy of the right knee. See SSOC received April 2020. Afterwards, the claim was returned to the Board. The Board notes that the Veteran has a duty to assist and cooperate with VA in developing evidence – the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board finds that the foregoing attempts to set up a VA examination for the right knee reflects substantial compliance with the March 2018 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will adjudicate this claim currently on appeal. As for the Veteran’s entitlement to a rating in excess of 10 percent for gastritis, the Board finds that the RO issued a SOC in January 2008. After the SOC, the Veteran did not file a Form 9. The Board has no jurisdiction to decide the Veteran’s claim for a rating in excess of 10 percent for gastritis. In February 2007 a rating decision was issued denying a rating in excess of 10 percent for service-connected gastritis. See Rating Decision-Narrative dated February 2007, Notification Letter dated February 2007. In March 2007, the Veteran filed a letter stating he wanted a higher rating for gastritis due to complications of the condition including effects to his breathing, vomiting, belching, and bloating among others. See Correspondence received March 2007; see also VA 21-4138 received May 2007. Then in January 2008, an SOC was issued that denied a rating in excess of 10 percent for gastritis. See SOC dated January 2008. Greater than 60 days elapsed, and the Veteran did not continue his appeal by filing a Form 9 and no other writing was received within 60 days indicating a desire to continue the appeal. See 38 C.F.R. § 19.52(b)(1). The records show that the Veteran never filed a Form 9 at any time. As such, the Veteran has not perfected his appeal as it pertains to the issue of a rating in excess of 10 percent for gastritis and the Board does not have jurisdiction. 1. Entitlement to an increased rating for a post-operative medial meniscotomy of the right knee is denied Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. 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 rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. 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). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case the Veteran has contended that he is entitled to an increased evaluation for his right knee disability. Knee disabilities can be rated under Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, and 5263. 38 C.F.R. § 4.71a. DC 5256 provides a 30 percent rating when flexion is ankylosed at the knee with a favorable angle in full extension, or in slight flexion between zero degrees and 10 degrees; a 40 percent rating for ankylosis when flexion is ankylosed between 10 degrees and 20 degrees; a 50 percent rating when flexion is ankylosed between 20 degrees and 45 degrees; a 60 percent rating when flexion is ankylosed at an extremely unfavorable degree or at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256. DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating for moderate recurrent subluxation or lateral instability; a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. DC 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. DC 5260, for limitations of flexion in the knee, provides a non-compensable rating when leg flexion is limited to 60 degrees; a 10 percent rating when leg flexion is limited to 45 degrees; a 20 percent rating when leg flexion is limited to 30 degrees; a 30 percent rating when leg flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261, for limitations of extension in the knee, provides a non-compensable rating when leg extension is limited to 5 degrees; a 10 percent rating when leg extension is limited to 10 degrees; a 20 percent rating when leg extension is limited to 15 degrees; a 30 percent rating when leg extension is limited to 20 degrees; a 40 percent rating when leg extension is limited to 30 degrees; a 50 percent rating when leg extension is limited to 45 degrees. 38 C.F.R. § 4.71a. DC 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) provides a 10 percent rating. 38 C.F.R. § 4.71a. This Veteran’s knee disability was rated under DC 5258 at 20 percent since July 1, 2003. 38 C.F.R. § 4.71a, DC 5258. On review of the record, the Board finds that the evidence does not support an evaluation in excess of 20 percent disabling since July 1, 2003. 38 C.F.R. § 4.71a, DC 5258. For example, in October 2016, a VA examination noted that the Veteran had flexion from zero to sixty degrees and extension from 60 to zero degrees. The Veteran had abnormal range of motion effecting bending, kneeling, and squatting. The Veteran had pain during flexion, and pain on rest. The examiner found objective evidence of tenderness or pain on palpitation of the joint at the medial joint line, and tuberositas tibiae. See C&P Exam received October 2016. The Veteran had no muscle atrophy, and no ankylosis in the right knee joint. He had no recurrent subluxation. However, the Veteran reported effusion with overuse or prolonged walking. The Veteran’s right knee joint was stable. Joint stability testing included Lachman test, posterior drawer test, medial instability test, and lateral instability test, with normal findings for all these tests recorded in the examination. Id. The Veteran was also reported to not have genu recurvatum. Id. The October 2016 VA examination noted that the Veteran did have a meniscal condition with a meniscal tear on the right side and frequent episodes of joint “locking.” The Veteran did have meniscal surgeries on the right knee. Id. These findings on examination are consistent with the Veteran’s current knee rating. Pursuant to a March 2018 Board remand decision, the Veteran was scheduled for a new examination to assess the nature and severity of his right knee disability. However, the Veteran failed to attend scheduled examinations. While the Board noted that the Veteran provided reasons for his failure to appear, the Veteran also did not respond to communications sent to him to set up another examination. See Subsequent Development Letter dated September 2018 and July 2019, VA 21-0820 Report of General Information received October 2018 and December 2018, VA 21-4138 Statement In Support of Claim received May 2019, Exam Request dated May 2019 and July 2019, Email Correspondence dated in August 2019. Considering the information in the records, the Veteran’s right knee disability does not warrant a higher rating. The Veteran has been rated at 20 percent for frequent episodes of locking pain and effusion in his knee due to dysfunction of the cartilage under DC 5258. There is no higher rating for this particular diagnosis code, which could be applicable to the Veteran. As the Veteran is already rated at the highest percentage for cartilage dysfunction. See 38 C.F.R. § 4.71a, DC 5258, 5259. The Board also considered whether any other diagnosis codes might apply to the Veteran’s right knee, which might result in an increase in his evaluation. However, the medical evidence does not show that the Veteran has ankylosis. The Veteran does not have recurrent subluxation or lateral instability in the right knee. In the right knee, the Veteran does not have flexion limited to less than 45 degrees and he does not have extension limited to 10 degrees. The Veteran has not been noted with genu recurvatum. Based upon the forgoing, the Board finds that a higher evaluation is not warranted for the Veteran’s service-connected right knee disability. (Continued on the next page)   While the Board recognizes the Veteran’s subjective belief that he is entitled to a higher rating, his lay assertions are not supported by the medical evidence of record. The Board has fully considered all treatment records and examinations. However, as discussed above a higher rating is not warranted and the records also do not support any additional ratings for the knee under other potentially applicable diagnosis codes. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. The Veteran’s claim of entitlement to an evaluation in excess of 20 percent disabling for his service-connected right knee disability must be denied. R. Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.