Citation Nr: 21032477 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 13-32 646 DATE: May 27, 2021 ORDER Entitlement to a rating in excess of 20 percent for left knee meniscus tear, beginning December 11, 2017, on an extraschedular basis is denied. REMANDED Entitlement to a rating in excess of 10 percent for left knee osteoarthritis, from March 30, 2012 to December 10, 2017, on an extraschedular basis is remanded. FINDING OF FACT Beginning December 11, 2017, the Veteran's left knee meniscus tear has not been shown to be so exceptional or unusual, with such related factors as marked interference with employment or repeated hospitalization, to warrant the assignment of a rating in excess of 20 percent on an extraschedular basis. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for left knee meniscus tear, beginning December 11, 2017, on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to January 1986. The Veteran testified before the Board of Veterans' Appeals (Board) and the undersigned Veterans Law Judge in August 2016. The Board most recently remanded the matters for further development in November 2020. The Board finds that entitlement to total disability rating due to individual unemployability has not been raised by this evidence of record and does not consider such a claim to be part of the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 54 (2009). Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step analysis for determining whether an extraschedular rating is appropriate. The threshold factor for extraschedular consideration is a finding on the part of the Regional Office (RO) or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). First, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extraschedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); see also Thun, supra. Second, if the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). See 38 C.F.R. § 3.321(b)(1). Third, there must be a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. See also Thun, supra. There is a justiciable standard limiting the Secretary of Veterans Affairs's discretion for assignment of such a rating, namely that the extraschedular rating is commensurate with the average earning capacity impairment due exclusively to service-connected disability or disabilities. Kuppamala, supra. Further, the Rating Schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Knee disabilities are rated under Diagnostic Codes 5256-5263. 38 C.F.R. § 4.71a. Beginning December 11, 2017, the osteoarthritis with a meniscal tear was rated under Diagnostic Code 5258. Diagnostic Code 5258 provides that a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. The Board notes that changes were made to the Diagnostic Codes of the knee, effective February 7, 2021; however, no changes were made to the Diagnostic Code relevant to the current appeal. The evidence of record, including December 2017, October 2019 and July 2020 VA examinations, as well as VA and private treatment records, show that the Veteran's left knee osteoarthritis and meniscus tear are adequately compensated by the 20 percent rating beginning December 11, 2017. The evidence fails to show marked interference with employment and frequent periods of hospitalization. The Veteran was afforded a VA examination in December 2017. The Veteran was diagnosed with a left knee meniscal tear by MRI. The Veteran avoided climbing ladders and running due to his knee pain. The Veteran did not report flare-ups. On examination, left knee flexion measured at 125 degrees and extension was normal. Pain was noted in flexion, and it caused functional loss. There was objective evidence of localized tenderness. Repetitive use testing did not result in additional functional loss. The examiner found no evidence of ankylosis. However, the left knee meniscal tear manifested in frequent episodes of joint "locking," joint pain, and joint effusion. The Veteran reported he had not missed work due to his knees, as he was able to sit down when his left knee pain became too severe. Due to the meniscus tear, the Veteran should not engage in work which requires use of ladders, repetitive stair use, or prolonged standing/walking over 25-30% of the shift and for no more than 20 minutes at a time. Additionally, he should not stoop, crouch, kneel, or squat. February 2018 VA treatment notes showed left knee flexion measured at 120 degrees and normal left knee extension. The Veteran was most recently provided with a VA examination in October 2019. He reported occasionally being unable to walk due to his left knee pain, and he thought the pain had gotten worse. Due to left knee pain, it was hard for the Veteran to climb stairs, walking short distances would cause pain to the point he would have to sit down, and bending down was difficult because he had trouble getting back up. The Veteran did not report flare-ups. On examination, left knee flexion measured at 65 degrees, and extension was normal. Pain was noted in flexion, and reduced range of motion caused functional loss. There was objective evidence of localized tenderness, pain with weight bearing, and crepitus. Repetitive use testing did not result in additional functional loss. Pain significantly limited functional ability with repeated use over time. The examiner found no evidence of ankylosis. However, the left knee meniscal tear manifested in frequent episodes of joint pain. The Veteran worked as a maintenance mechanic and reported missing no more than one week of work in the previous 12 months. VA and private treatment records throughout this appeal document the Veteran's complaints of left knee symptoms. They do not reveal that any visits solely for this disability resulted in overnight hospitalizations. The RO's November 2020 Administrative Review for entitlement to an increased rating recommended denial of increased ratings under 38 C.F.R. § 3.321(b)(1). In December 2020, the Director of Compensation Service found that no extraschedular entitlement existed. They found that, on review of the record, there was no evidence that showed frequent hospitalization, or marked interference with work. The Director concluded that an increased extraschedular evaluation was not warranted. Based on the evidence, the Board concludes that the Veteran's left knee meniscus tear has not been so exceptional or unusual to warrant the assignment of any higher rating on an extraschedular basis at any point during the period beginning December 11, 2017. The Board finds that the Veteran's left knee meniscus tear symptomatology is fully addressed by the rating criteria under which the disability is rated. The currently assigned 20 percent rating is warranted for meniscus tears resulting in frequent episodes of locking, pain, and effusion into the joint. (The Veteran is also service connected for left knee instability, which is not currently on appeal.) To the extent that the Veteran has reported additional symptoms, the symptoms do not present with such frequency as to result in marked interference with employment and frequent periods of hospitalization. The Veteran maintained employment and reported minimal time, if any, missed due to his left knee. As to frequent periods of hospitalization, the Board acknowledges that the Veteran sought treatment on many occasions for pain. Notably, such treatment did not result in overnight visits. Therefore, the Board finds that his symptoms do not rise to the level of marked interference with employment to present exceptional or unusual factors associated with the disability. Rather, these effects on the Veteran's occupation are commensurate with the average earning capacity impairment contemplated in the schedular rating assigned due to symptoms for his service-connected left knee meniscus tear. See 38 C.F.R. § 4.1. The Board has considered the Veteran's lay opinion that his left knee osteoarthritis and meniscal symptoms should be rated on an extraschedular basis. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the severity of the symptoms of the Veteran's left knee to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing severity. Moreover, he has offered only conclusory statements as to this matter. Accordingly, as the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application, and the claim for entitlement to a higher extraschedular rating for left knee meniscus tear, beginning December 11, 2017, is denied. See 38 U.S.C. § 5107(b). REASONS FOR REMAND In the March 2015 remand, the Board instructed the RO to refer the aforementioned claims to the Under Secretary for Benefits of the Director of Compensation Service to determine whether an extraschedular evaluation was warranted under 38 C.F.R. § 3.321(b)(1) for the Veteran's 10 percent rating for left knee osteoarthritis. However, such action was not taken. Accordingly, the Board remanded the matter again in November 2020 under Stegall in order to have the issue properly referred for extraschedular consideration. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2020, the Executive Director of Compensation Service issued Advisory Opinion; however, the opinion addressed the 10 percent rating for left knee instability and not left knee osteoarthritis. The issue of left knee instability has not been perfected and is not before the Board. Therefore, another remand is required to ensure the correct issue of an extraschedular rating in excess of 10 percent for left knee osteoarthritis is addressed by the Under Secretary or the Director of Compensation Service. Id. The matters are REMANDED for the following action: The RO should refer this case to VA Under Secretary for Benefits or the Director of Compensation Service for extraschedular consideration of left knee osteoarthritis under 38 C.F.R. § 3.321(b)(1). Consideration should be given to the 10 percent evaluation for left knee osteoarthritis. All documentation obtained pursuant to this determination must be included in the claims file prior to readjudication. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.