Citation Nr: 21015498 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-40 965A DATE: March 17, 2021 ORDER As of July 13, 2019, but no earlier, a separate rating of 10 percent, but no higher, for left knee degenerative disc disease status post partial medial meniscectomy based on symptomatic removal of semilunar cartilage is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT As of July 13, 2019, but no earlier, the Veteran’s left knee degenerative disc disease status post partial medial meniscectomy resulted in symptomatic removal of semilunar cartilage manifested by frequent episodes of joint locking and effusion. CONCLUSION OF LAW As of July 13, 2019, but no earlier, the criteria for a separate rating of 10 percent for left knee degenerative disc disease status post partial medial meniscectomy based on symptomatic removal of semilunar cartilage have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to October 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2012 by a Department of Veterans Affairs (VA) Regional Office. In September 2018, the Board remanded the issue for additional development and, in March 2020, denied the claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), and in November 2020, the Court granted the parties’ Joint Motion for Partial Remand, which vacated and remanded the March 2020 Board decision. The case now returns for further appellate review. Entitlement to a separate rating of 10 percent for left knee degenerative disc disease status post partial medial meniscectomy based on symptoms associated with a meniscal disability. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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 when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For the entire appeal period stemming from December 5, 2011, the date service connection for the Veteran’s left knee disability was awarded, such has been rated as 10 percent disabling pursuant to Diagnostic Code 5003-5261 prior to January 2, 2020, and Diagnostic Code 5003-5260 thereafter in contemplation of arthritis with painful limited motion. In the March 2020 decision, the Board denied an increased rating for such disability based on a determination that that the Veteran’s left knee disability did not result in a compensable limitation of motion of flexion or extension, ankylosis, or instability. However, in the JMPR, the parties found the Board failed to discuss whether a separate rating was warranted for the Veteran’s left knee disability for dislocated semilunar cartilage or symptomatic removal of semilunar cartilage under Diagnostic Code 5258 or 5259, respectively. In this regard, the JMPR was narrow in scope and no other error, to include in regard to the adequacy of the VA examinations conducted during the course of the appeal or compliance with prior remand orders, in the March 2020 Board decision was identified. In this regard, the Veteran’s representative who entered into the JMPR is an attorney in a law firm with extensive experience in VA litigation. “[W]hen an attorney agrees to a [Joint Motion] based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion, see Forcier [v. Nicholson, 19 Vet. App. 414,] 426 [(2006)], and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed.” Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), (vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Therefore, the Board will proceed with consideration of the narrow issue of whether the Veteran is entitled to a separate rating under Diagnostic Code 5258 or 5259 for meniscal symptomatology associated with his left knee disability. In this regard, the Court has held that separate ratings under the diagnostic codes applicable to knee disabilities may be assigned for a disability of the same knee joint. Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Lyles, the Court held that evaluation of a knee disability under Diagnostic Codes 5260 and/or 5261 does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, and vice versa. The Court further held that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code. Diagnostic Code 5258 provides a 20 percent rating when there is dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. Initially, the Board notes the evidence does not demonstrate the presence of dislocated semilunar cartilage at any point during the pendency of the appeal. Thus, a separate rating is not warranted under Diagnostic Code 5258 based on symptoms associated with dislocated semilunar cartilage. However, the record shows the Veteran underwent a partial medial meniscectomy in 1990 and, thus, a separate evaluation under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage is viable in the instant case. Here, however, the Board finds the currently assigned 10 percent rating under Diagnostic Code 5003-5261/5260 contemplates the symptoms associated with such removal of semilunar cartilage prior to July 13, 2019. Specifically, in June 2012, a VA examiner found the Veteran’s residual symptoms due to his meniscectomy included pain, stiffness, swelling, and decreased range of motion. Following physical examination of the Veteran in May 2015, a VA examiner determined the Veteran’s residuals from his partial meniscectomy consisted of only frequent episodes of joint pain. Here, the record shows the currently assigned 10 percent rating was awarded for functional loss due to painful motion and swelling. Although not specifically cited, the Board notes stiffness pertains to limitation of motion, which is considered under Diagnostic Code 5003. As such, the Board finds the Veteran’s symptoms, to specifically include pain, stiffness, swelling, and limitation of motion, are wholly contemplated by his currently assigned 10 percent rating under Diagnostic Code 5003-5261 prior to July 13, 2019. Thus, the award of a separate rating under Diagnostic Code 5259 would result in compensating the Veteran twice for the same symptomatology during such period. 38 C.F.R. § 4.14. However, according to a July 13, 2019, VA examination report, the Veteran’s residuals from his partial meniscectomy included frequent episodes of joint locking, joint pain, and joint effusion. Similarly, a September 2020 VA examination report, which was considered by the Agency of Original Jurisdiction in a December 2020 rating decision, reveals that his residual symptoms included frequent episodes of joint locking. Here, the Board finds the currently assigned 10 percent rating does not contemplate the Veteran’s symptoms of joint locking and joint effusion. Therefore, a separate rating of 10 percent for the Veteran’s left knee disability due to symptomatic removal of semilunar cartilage is warranted pursuant to Diagnostic Code 5259 as of July 13, 2019, the date of the VA examination report that first demonstrates the presence of such symptoms. See Fenderson, supra. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine, which has resulted in a partial award of a separate 10 percent rating for the Veteran’s left knee disability based on symptomatic removal of semilunar cartilage as of July 13, 2019. However, insofar as the Board has denied higher or separate ratings for such disability, the preponderance of the evidence is against such aspects of the Veteran’s claim. Thus, the benefit of the doubt doctrine is not applicable in such regard and his claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, Counsel 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.