Citation Nr: 21014597 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 07-37 504 DATE: March 15, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia of the right patella is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia of the left patella is remanded. REASONS FOR REMAND The Veteran had active service from April 1979 to September 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a Rating Decision issued in October 2005 by a Department of Veterans Affairs (VA) Regional Office (RO). During this appeal, the Veteran testified before a Veterans Law Judge (VLJ) on November 1, 2010. After this hearing, the VLJ who conducted it left the Board. The Veteran was notified of the VLJ’s departure in August 2017 and afforded the opportunity to request an additional hearing. No additional hearing was requested. By way of history, the Veteran initially filed a claim of entitlement to service connection for a bilateral knee condition in February 2005, prior to his separation from active duty service in September 2005. In an October 2005 Rating Decision, the RO granted entitlement to service connection for left knee chondromalacia patella as well as right knee chondromalacia patella, and assigned each disability a separate 10 percent rating under Diagnostic Codes 5099-5019, effective October 1, 2005, the day following his separation from service. However, the Veteran expressed disagreement with this determination. In an April 2016 decision, the Board denied the Veteran’s claims of entitlement to disability ratings in excess of 10 percent for left knee chondromalacia patella and right knee chondromalacia patella. However, the Veteran appealed these determinations to the United States Court of Appeals for Veterans Claims (Court) and, in a December 2016 Joint Motion for Partial Remand (Joint Motion), the parties vacated and remanded the Board’s April 2016 decision on the basis that it failed to provide adequate reasons or bases for its adverse determinations concerning the knee ratings. These claims then returned to the Board, which remanded the knee claims for additional development in a March 2017 decision. While on remand, the RO issued a July 2017 Rating Decision which granted entitlement to separate evaluations for limitation of flexion of the left knee and limitation of flexion of the right knee under Diagnostic Code 5260, and assigned each disability a noncompensable rating effective May 12, 2017 (the date of a VA examination showing limited flexion of the bilateral knees). Later, in a November 2017 decision, the Board granted entitlement to separate 10 percent ratings for slight left knee instability and slight right knee instability pursuant to Diagnostic Code 5257. This decision also remanded the claims of entitlement to higher ratings for chondromalacia patella and limitation of flexion of the left and right knee for additional development. In a November 2017 Rating Decision, the RO effectuated the Board’s grants of separate 10 percent ratings for slight left knee instability and slight right knee instability, assigning each grant an effective date of September 7, 2007. The knee claims returned to the Board in September 2019, at which time the Board denied the Veteran’s claims of entitlement to compensable disability ratings for limitation of flexion of the left knee and limitation of flexion of the right knee; however, the Board’s September 2019 decision also remanded the claims of entitlement to disability ratings in excess of 10 percent for chondromalacia of the left patella and chondromalacia of the right patella back to the RO for additional development. The Board notes that since its most recent remand in September 2019, the Veteran has filed numerous additional service connection and increased rating claims, to include entitlement to increased ratings for his service-connected right knee chondromalacia patella, left knee chondromalacia patella, right knee instability, left knee instability, limitation of flexion of the right knee, and limitation of flexion of the left knee. In a December 2020 Rating Decision, the RO denied the Veteran’s claims of entitlement to higher ratings for right knee instability, left knee instability, limitation of flexion of the right knee, and limitation of flexion of the left knee; however, it also improperly adjudicated and denied the Veteran’s claims of entitlement to higher ratings for right knee chondromalacia patella and left knee chondromalacia patella, which were still pending before the Board in the current Legacy Appeals stream. Although the Veteran filed a Decision Review Request: Supplemental Claim in February 2021 in response to the December 2020 Rating Decision, he did not appeal any of the issues pertaining to the knee ratings. The claims he did appeal, consisting entirely of new service connection claims, will be adjudicated separately under the Appeal Modernization Act (AMA) system, as appropriate. In summary, with respect to the Veteran’s bilateral knees, he is currently service connected for the following disabilities: right knee chondromalacia patella (evaluated as 10 percent disabling under Diagnostic Codes 5099-5019), left knee chondromalacia patella (evaluated as 10 percent disabling under Diagnostic Codes 5099-5019), right knee instability (evaluated as 10 percent disabling under Diagnostic Code 5257), left knee instability (evaluated as 10 percent disabling under Diagnostic Code 5257), limitation of flexion of the right knee (evaluated as noncompensable under Diagnostic Code 5260), and limitation of flexion of the left knee (evaluated as noncompensable under Diagnostic Code 5260). However, only the issues of entitlement to higher disability ratings for right knee chondromalacia patella and left knee chondromalacia patella under Diagnostic Codes 5099-5019 (to include whether separate disability ratings are warranted for meniscal conditions under Diagnostic Code 5258) are currently before the Board. Under Diagnostic Code 5258, a maximum 20 percent evaluation is possible for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion. 38 C.F.R. § 4.71a, Diagnostic Code 5258. In its September 2019 Remand, the Board noted that magnetic resonance imaging (MRI) dating back to 2005 documented stable bilateral meniscal tears. Every VA examination the Veteran had been afforded from 2005 to 2017 documented this history and sometimes even discussed the MRIs in question. Nevertheless, these examinations had all consistently stated that the Veteran did not have a meniscal condition. Consequently, the Board determined that a remand was required to obtain an addendum opinion clarifying whether these stable meniscal tears qualified as meniscal conditions, and what, if any, symptoms documented in the Veteran’s various examinations and medical records throughout the appeal period were attributable to his stable meniscal tears. Specifically, the Board instructed that the RO should, “Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s stable meniscal tears are meniscal conditions and to identify what, if any, of the symptoms documented in the Veteran’s various VA examinations or elsewhere in the claims file are attributable these meniscal tears.” Unfortunately, the Board’s September 2019 Remand did not identify specific symptoms for the clinician to discuss. Pursuant to the Board’s Remand instructions, a medical opinion was obtained in February 2020. Following a review of the Veteran’s claims file, the clinician explained that: Per review of the Veterans MRI of the Bilateral Knee 08/31/2005. The overall impression was bilateral oblique, inferiorly surfacing stable tears of the posterior horns of the medial meniscus. He was seen over the years for multiple C&P examinations. He complained of pain with prolonged walking, standing, or attempts to extend his knees. The pain with prolonged standing, walking, and markedly decreased range of motion could be associated with known history of stable meniscal injury involving stable tears of the posterior horns of the medical meniscus. Only about 10% of patients with posterior horn tears are completely repairable. This Veteran has no history of knee surgery and due to the likelihood of peristent pathology his known pain and limited knee extension are possibly multifactorial to include medial posterior meniscus degenerative changes. Unfortunately, although this opinion concluded that the causes of the Veteran’s knee pain and limited extension were possibly multifactorial in nature (with one of the causes being medial posterior meniscus degenerative changes), this opinion did not contain a clear answer to the Board’s primary question as to whether the Veteran’s stable meniscal tears constituted meniscal conditions. Moreover, the clinician did not discuss symptomatology within the record which was directly relevant to rating semilunar cartilage disabilities under Diagnostic Code 5258. For instance, the August 2005 MRI revealed evidence of small bilateral joint effusions. While subsequent VA examinations found that there was no history of knee effusion, the Veteran reported stiffness in his bilateral knees (a symptom of joint effusion) at time of the April 2009 VA examination. Also, the May 2017 VA examination found “generalized edema of the right knee” (swelling caused due to excess fluid accumulation in the body tissues). The Board emphasizes that the requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). As such, given the August 2005 MRI evidence of joint effusions in the bilateral knees, an opinion as to whether the Veteran has a history of effusion into the knee joints caused by his meniscal tears throughout the rating period on appeal would be helpful. In October 2020, the RO sent an email to a VA physician asking for clarification of the February 2020 medical opinion. Specifically, the RO inquired as to whether the Veteran’s stable tears of the posterior horns of the medial meniscus in both knees constituted a bilateral “meniscal condition,” and whether the right knee edema noted on the May 2017 examination report was attributable to these stable meniscal tears. An email response was received later that month in which a VA physician concluded that, “The stable bilateral posterior horn meniscal tears are the bilateral meniscal conditions diagnosis,” and that, “After review of orthopedic and evidence-based medical literature, including UpToDate: stable tears of the posterior horns of the medial meniscus do not cause generalized edema of the knee.” Significantly, however, this opinion did not address the bilateral knee joint effusion diagnosed at the time of the August 2005 MRI. Additionally, although the Board’s September 2019 Remand did not request a new in-person physical examination of the Veteran’s knees, such an examination was nonetheless ordered by the RO and conducted in December 2020 as part of the development for the new increased rating claims filed by the Veteran in June 2020. Although this December 2020 Knee and Lower Leg Conditions examination report was purportedly completed after an in-person examination of the Veteran and a review of his claims file, the report erroneously indicated that there was never a diagnosis of meniscal tear of either knee. The examination report further indicated that the Veteran did not now or ever have a meniscus (semilunar cartilage) condition. The December 2020 report made no mention of the August 2005 MRI, and indicated that imaging studies of the knees had not been performed. These findings are particularly problematic in light of the VA medical opinion obtained two months earlier which established that the Veteran’s diagnosed stable bilateral posterior horn meniscal tears did, in fact, constitute bilateral meniscal condition diagnoses. As such, the Board finds that the December 2020 Knee and Lower Leg Conditions examination report is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value). While the Board sincerely regrets further delay, it finds that additional development must be undertaken in order to fulfill VA’s duty to assist. On remand, an addendum opinion must be obtained which specifically addresses the likelihood that the Veteran currently has or had at any time during the rating period on appeal (i.e., since his separation from service in September 2005) joint effusion of the right knee and/or left knee caused by his diagnosed meniscal conditions (stable tears of the posterior horns of the medial meniscus in both knees). If the examiner concludes that the Veteran does not have joint effusion of the right knee and/or left knee caused by meniscal conditions, then the examiner must explain whether the small bilateral joint effusions noted in the August 2005 MRI interpretation were misdiagnoses or rather legitimate diagnoses which have since resolved. If the VA examiner finds that an additional in-person examination (to include imaging studies such as X-ray and/or MRI) is necessary to resolve these inquiries, then one should be provided. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature of the Veteran’s diagnosed meniscal conditions of the bilateral knees. The entire claims file, including a copy of this remand, must be made available to the examiner for review. The examiner may schedule a new in-person examination (to include imaging studies such as X-rays and/or MRI) if necessary, for completion of adequate findings. If a new examination is necessary, and feasible, then schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his bilateral meniscal conditions (stable tears of the posterior horns of the medial meniscus in both knees). The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the disability under the rating criteria, to include locking, pain, and joint effusion. Specifically, the examiner is asked to opine as to whether the Veteran now has or had at any time during the rating period on appeal (i.e., since his separation from service in September 2005) joint effusion of the right knee and/or left knee caused by his diagnosed meniscal conditions (stable tears of the posterior horns of the medial meniscus in both knees). If the examiner concludes that the Veteran does not have joint effusion of the right knee and/or left knee caused by his diagnosed meniscal conditions, then the examiner must explain whether the small bilateral joint effusions noted in the August 2005 MRI interpretation were misdiagnoses or rather legitimate diagnoses which have since resolved. (Continued on the next page)   A rationale for all opinions expressed must be provided. The examiner is advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation (whether based on lack of expertise, insufficient information, or unprocured testing) of the individual examiner. 2. Afterward, review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought on appeal remain denied, then issue an appropriate Supplemental Statement of the Case and provide the Veteran and his representative with the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.