Citation Nr: 21027389 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 13-36 472 DATE: May 5, 2021 ORDER An effective date of December 2, 2011, for the grant of a 20 percent disability rating for a service-connected left knee disability based upon cartilage impairment is granted. REMANDED Entitlement to an initial increased rating in excess of 30 percent for a service-connected left knee strain associated with loss of use of bilateral feet disability is remanded. FINDINGS OF FACT 1. Prior to December 2, 2011, the Veteran's left knee disability based upon cartilage impairment was not productive of dislocated semilunar cartilage, locking, pain, and effusion into the joint. 2. From December 2, 2011, the Veteran's left knee disability based upon cartilage impairment was productive of dislocated semilunar cartilage, locking, pain, and effusion into the joint. CONCLUSION OF LAW The criteria for an earlier effective date of December 2, 2011 for the grant of a 20 percent disability based upon cartilage impairment rating for a service-connected left knee disability based upon cartilage impairment have been met. 38 U.S.C. §§ 1155, 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.126, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971. This matter originally came before the Board of Veterans' Appeals (Board) from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran testified at a May 2017 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. The Board previously remanded the matter for further development in April 2018. A January 2020 Board decision denied the Veteran's claims. That decision was appealed to the United States Court of Appeals for Veteran Claims (CAVC), where a Joint Motion for Remand (JMR) was granted in December 2020. The matter is again before the Board. An earlier effective date of December 2, 2011, for the grant of a 20 percent disability rating for a service-connected left knee disability based upon cartilage impairment is granted. The Veteran believes that an earlier effective date for the grant of a 20 percent disability rating for a service-connected left knee disability based upon cartilage impairment is warranted. See December 2020 CAVC Decision. Generally, an effective date is either the date of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2). The date entitlement arose is the date when the claimant met the requirements for the benefits sought. This is determined on a factual basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). If the claimant files a claim for benefits before the disability has manifested, the effective date cannot be earlier than the date the disability eventually manifested. Id. The RO previously assigned a 20 percent disability rating for the Veteran's cartilage impairment under 38 C.F.R. § 4.71a, Diagnostic Code 5258. A rating under Diagnostic Code 5258 is warranted if there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. A 20 percent disability rating is the maximum allowable rating under this Diagnostic Code. The Board previously granted an earlier effective date of January 17, 2012 for the cartilage impairment. See January 2020 BVA Decision. The parties to the JMR agreed that a remand was necessary because the Board failed to consider medical records showing that the Veteran had left knee medial meniscus pathology and joint effusion in December 2011. Id. Medical records from January 2012 show that the Veteran had left knee pain associated with catching and popping. The Veteran also had moderate joint effusion. See February 2012 Medical Treatment Record. Medical records from December 2, 2011 show that an MRI revealed a meniscal tear and moderate joint effusion. See September 2015 Medical Treatment Record. An October 2015 examination found that the left knee meniscal tear was diagnosed on December 2, 2011. See October 2015 C&P Exam. The Board notes that a November 2011 examination found no history of any meniscal conditions. See November 2011 VA Examination. No records prior to December 2, 2011 show any meniscal conditions. Based on the evidence of record, the Board gives the Veteran the benefit of the doubt and finds that a 20 percent disability rating is warranted from December 2, 2011. Specifically, on that date, the Veteran had dislocated semilunar cartilage, locking, pain, and effusion. The Board finds that the left knee catching is akin to locking. As such, the requirements of Diagnostic Code 5258 were met at that time. There is no evidence of a meniscal condition or catching prior to that date; therefore, an even earlier effective date is not warranted. Therefore, from December 2, 2011, an earlier effective date of a 20 percent disability rating for a left knee disability based upon cartilage impairment is granted. REASONS FOR REMAND Entitlement to an initial increased rating in excess of 30 percent for a service-connected left knee disability associated with loss of use of bilateral feet disability is remanded. The Veteran believes that a rating in excess of 30 percent for a service-connected left knee disability associated with loss of use of bilateral feet disability is warranted. See December 2020 CAVC Decision. The parties to the JMR also agreed that a remand was necessary because the Board failed to explain why it found the August 2019 VA examination adequate or failed to remand the matter for a new examination which complies with the requirements found in Correia. See Correia v. McDonald, 28 Vet. App. 158 (2016). The parties noted that the August 2019 VA examination did not provide range of motion testing for passive and non-weight bearing and did not explain why such testing could not be done. See December 2020 CAVC Decision. The Board finds that the August 2019 VA examination is inadequate for the reason explained by the parties to the JMR. Additionally, the examination is inadequate because it did not consider the ameliorative effects of medication when evaluating the current nature and severity of the Veteran's left knee disabilities. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (when a Diagnostic Code is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication). The Board notes that it previously found the October 2015 examination inadequate because it did not comply with the requirements found in Correia. Additionally, the Board finds the March 2013 examination inadequate because it did not consider/was unable to consider all the relevant evidence of record. See March 2013 VA Examination; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, among other things, the examination found that the Veteran had never had a meniscal condition. Clearly, the examination did not consider/was unable to consider the medical evidence which showed a meniscal condition. See February 2012 Medical Treatment Record. Finally, the Board finds the November 2011 examination inadequate, among other reasons, because it did not provide range of motion testing for passive and non-weight bearing and did not explain why such testing could not be done as required by Correia. See November 2011 VA Examination. Therefore, a remand is needed for an examination which addresses the entire period on appeal. The matter is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any relevant outstanding private and/or VA treatment records. After obtaining any necessary authorizations from the Veteran, make all reasonable attempts to obtain the outstanding records in accordance with 38 C.F.R. § 3.159. 2. Update VA and private treatment records. VA treatment records appear current up to March 2020. 3. Schedule one or more appropriate VA examinations to determine the nature and severity of the service-connected left knee disabilities throughout the entire appeal period (i.e. since September 2010). This should include, but is not limited to, any muscle injuries and any neurological impairments of the left knee. The examiner should also consider the impact that the Veteran's left knee disabilities may have on the Veteran's sleep. The claims file and a copy of this Remand should be made available to and reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected left knee disabilities throughout the entire appeal period (i.e. since September 2010). This should include, but is not limited to, any muscle injuries and any neurological impairments of the left knee. The severity of any muscle injuries (i.e. slight, moderate, moderately severe, or severe) and the severity of any neurological impairments (i.e. mild, moderate, severe incomplete paralysis, or complete paralysis of the affected nerves) should be assessed. Identify the specific muscle groups associated with any muscle injuries and identify the specific nerves associated with any neurological impairments. This should also include all symptoms and related impairment that would be present without the relief provided by medications used to treat the disabilities. This should also include the impact that the Veteran's service-connected left knee disabilities may have on his sleep. The examiner should also provide range of motion measurements in degrees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, non-weight-bearing, and if possible, the range of motion of the opposite undamaged joint. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why in the report. The examiner must comment on the functional limitations caused by repetitive use over time and flare-ups due to the Veteran's left knee disabilities. The examiner must indicate whether, and to what extent, the Veteran's range of motion is additionally limited after repetitive use over time and during flare-ups in terms of degrees, if possible. If it is not possible, the examiner should explain why, making clear that all procurable and assembled data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to repetitive use over time and flare-ups elicited from the Veteran) was considered, and that the medical community at large could not provide such an opinion without resorting to speculation. If it is not possible due to a deficiency in the record or a lack of personal medical knowledge, the examiner should state so. Any additional impairment on use or in connection with repetitive use over time and flare-ups should be described in terms of the degree of additional range of motion loss. If the Veteran states that the limitation on range of motion is variable, provide the range of variableness in terms of degrees. The examiner should specifically describe the severity, frequency, and duration of impairment after repetitive use over time and during flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such repetitive use over time and flare-ups affect functional impairment. This testing should be done regardless of whether the Veteran is tested after repetitive use over time or during a flare-up or not. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). After a review of the record on appeal and an examination of the Veteran, the examiner is asked to provide the following opinions: (A) Identify all disabilities related to the Veteran's service-connected left knee disabilities existing at any point during the pendency of the appeal (i.e. September 2010) even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) The Veteran is also claiming that his service-connected left knee disabilities are interfering with his sleep. Identify all disabilities related to this complaint existing at any point during the pendency of the appeal (i.e. since September 2010) even if they are currently asymptomatic or have resolved during the pendency of the appeal. (C) For each disability identified, is it at least as likely as not (i.e. a 50 percent probability or greater) that the disability is/was caused by or aggravated by the Veteran's service-connected left knee disabilities? For aggravation, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) Medical records from 2017 showing that left knee extension lacked eight degrees and left knee flexion was 75 degrees. See May 2020 Medical Treatment Record. (2) Medical records from 2014 showing knee pain, which was rated at a 5/10. The knee pain was achy, intense, and continuous. Medical records from 2015 showed that an injection provided some relief. Medical records from 2017 showed that the knee hurt all the time, injections helped for four days, and that patellar reflexes were a 1+. Medical records from 2018 showed that knee surgery was recommended and that there was possible cramping. Medical records from 2019 showed that knee injections only lasted for a few days and that the Veteran's knee awakened him from sleep frequently at night. See March 2020 CAPRI. (3) A medical record from 2019 showing a meniscal tear and arthritis. The Veteran reported knee pain everyday which was dull and achy at times. The knee hurt when the Veteran moved, and the pain also woke him up at night. The knee locked up and gave out at times. He took motrin as needed but nothing really helped. Initial range of motion measurements for flexion and extension were five to 80 degrees and 80 to five degrees respectively. There was objective evidence of crepitus. Range of motion measurements for repeated use over time for flexion and extension were 10 to 70 degrees and 70 to 10 degrees respectively. Flexion muscle strength was a 4/5. The reduction was entirely due to the service-connected left knee disabilities. There was joint instability with posterior instability at a 1+. There were frequent episodes of joint locking with pain. The Veteran used a walker and cane. The walker was used all the time due to knee pain and the cane was used to walk short distances. See August 2019 C&P Exam. (4) Medical records from 2018 showing tricompartmental osteoarthritis, including narrowing and sclerosis. See January 2019 Medical Treatment Record. (5) The Veteran's report that the knee felt like it was burning and hot, like a burning sensation. The knee buckled on him sometimes when he walked. He wore a brace he received from VA. The brace was helpful. He took ibuprofen for the knee pain. He could not fully straighten the knee because it would get tight. When he tried to stretch it, it would lock. He could not bend it forward fully. It hurt to bend the knee. The knee sometimes felt like it gave way or was unstable. When he walked, the knee felt like it went to the outside a little bit and would give out. The knee worsened over the past six to seven years. It was getting stiffer, harder to push down, and harder to straighten. See Hearing Transcript. (6) Medical records from 2016 showing that left knee extension muscle strength was a 3/5. Medical records from 2017 showed the Veteran's report that the left knee resulted in limping and overcompensating. See February 2017 CAPRI. (7) Medical records from 2016 showing continuous knee pain rated at an 8/10, and that the Veteran took ibuprofen for knee pain. See December 2016 CAPRI. (8) Medical records from 2014 showing continuous knee pain and knee pain with movement. Medical records from 2015 showed injections for the knee and a left knee reflex examination with a score of 0 (absent). See October 2015 CAPRI. (9) A medical record from 2015 showing daily flare-ups of the left knee rated at a 10/10. Initial range of motion measurements for flexion and extension were -10 to 90 degrees and 90 to -10 degrees respectively. Pain was noted on examination. There was objective evidence of crepitus. Repetitive use testing could not be performed due to pain on movement. Muscle strength was a 2/5 for flexion and extension, showing a reduction in muscle strength. There was a history of recurrent effusion. Joint stability testing could not be performed due to pain. However, instability was indicated. There was a meniscal tear with frequent episodes of joint pain and joint effusion. The Veteran constantly used a cane. There was mild osteopenia, trace effusion, and distal quadriceps enthesopathy. The Veteran required a wheelchair for assisted mobility. Further information is provided. See October 2015 C&P Exam. (10) The Veteran's 2013 report that the left knee was less mobile and was painful all the time. See December 2013 Form 9. (11) A 2013 medical record showing daily left knee pain which reached a rating of 9/10 every several days. Flare-ups were moderate to severe. It was getting worse over time. The initial range of motion measurement for flexion was 95 degrees with pain beginning at 40 degrees. The Veteran used a cane. Arthritis was documented. See March 2013 VA Examination. (12) Medical records from 2011 showing knee arthritis. See February 2013 Medical Treatment Record. (13) Medical records from 2012 showing that the Veteran used Voltaren gel for arthritis and an anti-inflammatory for the left knee. See May 2012 VCAA Notice Acknowledgement. (14) Medical records from 2012 showing anterior, medial, and lateral knee pain associated with catching and popping. The knee bothered the Veteran every day and he had sleeping difficulty from the pain. There was knee osteoarthritis, moderate joint effusion, and a medial meniscus tear. A knee injection was performed. Further information is provided. See February 2012 Medical Treatment Record. (15) Medical records from 2011 showing knee arthritis, that knee pain woke the Veteran up at night, mild osteophytic spurring over the superior aspect of the patella, and some minimal narrowing over the lateral facet patella. Further information is provided. See December 2011 Medical Treatment Record. (16) A medical record from 2011 showing left knee swelling and stiffness. There was continued pain. There was mild numbness over the kneecaps. Flare-ups resulted in stiffness. Range of motion testing showed pain beginning at 100 degrees on flexion and 20 degrees on extension. Further information is provided. See November 2011 VA Examination. (17) Medical records from 2010 showing knee stiffness which kept the Veteran awake at night. The stiffness could be for one to two hours, but sometimes could hurt and be stiff for five hours. Swelling worsened at the end of the day and with humid weather. Sometimes the knees were stiff all night. There was tenderness in the knees. See October 2010 Medical Treatment Record. (18) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Readjudicate the issue on appeal. The AOJ should consider separate ratings under any diagnostic code or by analogous rating, if warranted by the evidence of record. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, Associate 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.