Citation Nr: 22015243 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-44 930 DATE: March 16, 2022 ORDER A separate 10 percent rating for symptomatic removal of the right knee semilunar cartilage is granted. REMANDED The claim of entitlement to a rating greater than 10 percent for soft tissue calcification beneath the lateral malleolus, left ankle, is remanded. The claim of entitlement to a rating greater than 10 percent for degenerative joint disease of the right knee (previously characterized as meniscus tear of the right knee with patellofemoral syndrome) is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran experiences symptoms of his 2011 right lateral meniscus (semilunar cartilage) repair, including frequent joint effusion and locking. CONCLUSION OF LAW The criteria for entitlement to a separate 10 percent disability rating for symptomatic removal of the right knee semilunar cartilage have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.7, 4.14, 4.71A, Diagnostic Code (DC) 5259. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard, including on a period of active duty for training (ACDUTRA) from March 2000 to July 2000, and periods of active duty (AD) from October 2003 to August 2004 and from December 2008 to December 2009. His claims come before the Board of Veterans' Appeals on appeal of a June 2015 Department of Veterans Affairs (VA) rating decision. The Veteran testified in support of these claims during a virtual hearing held before the undersigned Veterans Law Judge (VLJ) in July 2020. Later that month and again in October 2021, the Board remanded these claims to the Agency of Original Jurisdiction (AOJ) for additional action. Entitlement to a rating greater than 10 percent for a meniscus tear of the right knee with patellofemoral syndrome The Agency of Original Jurisdiction (AOJ) has assigned the Veteran's right knee disability a 10 percent rating under 38 C.F.R. § 4.71A, DCs 5003 and 5260, based on degenerative joint disease in the right knee with painful motion. The Veteran claims that he has right knee symptoms that are not considered in this rating. During the course of this appeal, including in written statements and at treatment visits, VA examinations and his hearing, he identified such symptoms as locking, giving way, instability, buckling, swelling, redness and a feeling of heat and hardness in the joint area. The AOJ has characterized the Veteran's right knee disability as a meniscus tear with patellofemoral syndrome, without mentioning the degenerative joint disease, the basis of the 10 percent rating. As explained in the Remand section of this decision, additional development is needed to decide whether a rating greater than 10 percent may be assigned the right knee disability under DCs 5003 and 5260, which govern ratings of degenerative joint disease based on limitation of motion of the leg. However, in the meantime, a separate 10 percent rating may be assigned for residuals of the meniscus tear under DC 5259. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury provided the symptomatology of one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Pyramiding, the evaluation of the same disability under different DCs, is to be avoided. 38 C.F.R. § 4.14. Under 38 C.F.R. § 4.71A, DC 5259, a 10 percent rating may be assigned for symptomatic removal of semilunar cartilage. Here, in 2011, after testing revealed a right knee tear, the Veteran underwent an arthroscopy and lateral meniscus repair. During the following year, the Veteran's right knee improved, and he met his rehabilitation goal. Beginning in 2013, however, he again began experiencing right knee symptoms. During treatment visits dated in 2013 and since 2016, x-rays taken in September 2019, and April 2012, November 2020 and October 2021 VA knee and lower leg examinations, medical professionals objectively confirmed symptoms not contemplated in the 10 percent rating assigned the right knee degenerative joint disease, including crepitus and frequent episodes of joint locking, pain and effusion. These symptoms initially necessitated the use of a knee sleeve, which was not effective, and then the use of different types of braces. As the evidence indicates that the Veteran underwent repair of right knee semilunar cartilage and now has various right knee symptoms, including frequent joint effusion and locking, first shown prior to the repair, the criteria for entitlement to a separate 10 percent rating for symptomatic removal of right knee semilunar cartilage have been met. As this rating contemplates symptoms other than painful motion, for which the Veteran is also service connected under DCs 5003 and 5260, it does not violate the rule against pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. at 262. REASONS FOR REMAND Entitlement to a rating greater than 10 percent for soft tissue calcification beneath the lateral malleolus, left ankle Entitlement to a rating greater than 10 percent for degenerative joint disease of the right knee (previously characterized as meniscus tear of the right knee with patellofemoral syndrome) During the course of this appeal, VA amended the criteria for rating musculoskeletal disabilities, effective February 7, 2021. See 85 Fed. Reg. 76464 (Nov. 30, 2020); 86 Fed. Reg. 8142 (Feb. 4, 2021). The AOJ has not yet considered the amended criteria for rating the Veteran's knee and ankle disabilities in support of these claims. In addition, in a February 2022 Written Brief Presentation, the Veteran's representative recommended further development (obtaining an independent medical examination) to correct a prior inadequate examination. Subsequently, the Veteran submitted statements indicating that he no longer wished to undergo an examination. To proceed further, however, an additional medical opinion is needed regarding the severity of the Veteran's left ankle and right knee symptoms. Given the Veteran's statements, the Board will secure such opinion without subjecting the Veteran to another examination. Entitlement to a TDIU During the course of this appeal, the Veteran asserted that his right knee and left ankle disabilities negatively impact his job. The Veteran's assertion in this regard raises a claim for a TDIU as a component of his claims for increased ratings. Rice v. Shinseki, 22 Vet. App. 447(2009) (claim for TDIU due to service-connected disability part and parcel of increased rating claim when raised by record). The AOJ has not yet considered this raised claim in the first instance. These matters are REMANDED for the following action: 1. Transfer this case to a VA examiner for an opinion discussing the nature and severity of the Veteran's left ankle and right knee symptoms. The examiner should review all pertinent evidence of record, including the Veteran's written statements and July 2020 hearing testimony, treatment records and VA examination reports. Acknowledging as competent any reports of lay-observable ankle symptoms, the examiner should indicate whether, including during flare-ups of left ankle pain, the Veteran has marked or more than marked limited left ankle motion. Acknowledging the Veteran's reports of right knee instability and medical evidence noting no such instability, the examiner should explain why, if the Veteran is not experiencing such instability, VA issued him various type of knee braces. The examiner should also indicate whether the instability, as described, results from the 2011 meniscal tear repair and is slight, moderate or severe, and whether it affects the same functions as the locking, service connected above. The examiner should opine whether the Veteran's left ankle and right knee disabilities render the Veteran unable to secure and/or maintain gainful employment. The examiner should provide rationale for each opinion. 2. Adjudicate the raised TDIU claim. 3. In readjudicating the claims for increased ratings, consider the applicability of VA's recently amended criteria for rating disabilities of the musculoskeletal system, which include knee and ankle disabilities, pursuant to 85 Fed. Reg. 76464 (Nov. 30, 2020); 86 Fed. Reg. 8142 (Feb. 4, 2021), and whether the Veteran is entitled to a separate rating for right knee instability. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.