Citation Nr: 18131256
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-34 966
DATE:	August 31, 2018
ORDER
Entitlement to a separate 20 percent rating for dislocation of the semilunar cartilage of the left knee is granted.
REMANDED
The claim for a rating in excess of 20 percent for the residuals of a fracture of the left patella is remanded.
The claim for a total rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. 
FINDING OF FACT
The Veteran has a large complex tear of the medial meniscus of the left knee with frequent locking, pain, and effusion. 
CONCLUSION OF LAW
The criteria for a separate 20 percent rating for dislocation of the semilunar cartilage of the left knee have been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.71a, Codes 5258.  
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from October 1973 to November 1977.  
The Veteran appeared at a June 2016 videoconference hearing before the undersigned Veterans Law Judge.  A transcript is in the record.
The Veteran’s claims for service connection for a right knee disability, a lumbar spine disability, and left hip strain, all as secondary to the service-connected left knee disability, were granted during the course of the appeal.  This is considered a full grant of the benefits sought for each issue, and they are no longer on appeal. 
Entitlement to a separate 20 percent rating for dislocation of the semilunar cartilage.
The Veteran contends that he is entitled to a rating that is higher than 20 percent for the residuals of his fracture of the left patella.  Although he did not raise the matter of entitlement to a separate rating for dislocation of the semilunar cartilage, it has been raised by the record. 
The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria.  38 U.S.C. § 1155.  Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In addition, the entire history of the veteran's disability is also considered.  Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life.  38 C.F.R. § 4.10. 
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the Board will consider whether or not a staged rating is appropriate for the period on appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).
The record shows that entitlement to service connection for the residuals of a fracture of the left patella was granted in a January 1993 rating decision.  This disability was assigned a 10 percent rating under the diagnostic code for other impairment of the knee due to recurrent subluxation or lateral instability.  
A 10 percent rating is assigned for slight impairment, a 20 percent rating is assigned for moderate impairment and a 30 percent rating is assigned for severe impairment.  38 C.F.R. § 4.71a, Code 5257.  The rating decision states that the 
10 percent rating was assigned based on a mild degree of limitation of motion and subjective complaints of pain.  A November 1993 rating decision increased the initial rating to 20 percent under the same rating code.  The 20 percent rating continues to be in effect.  
However, the United States Court of Appeals for Veterans Claims (Court) has held that the evaluation of a knee disability under 38 C.F.R. § 4.71a, Code 5257 does not preclude a separate evaluation of a meniscal disability of the same under 38 C.F.R. § 4.71a, Codes 5258 or 5259.  See Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017).  A separate evaluation may be assigned when there are distinct symptoms that do not overlap.  
A 20 percent rating may be assigned for a knee that has dislocation of the semilunar cartilage, with frequent episodes of locking, pain, and effusion to the joint.  38 C.F.R. § 4.71a, Codes 5258.  
In this case, a March 2013 Knee and Lower Leg Conditions Disability Benefits Questionnaire completed by the Veterans’ private doctor states that the Veteran’s knee frequently locks and is painful.  Effusion was also noted.  These same symptoms were identified on a November 2014 VA examination.  A May 2016 letter from the Veteran’s private doctor notes that the Veteran has a large complex tear of the medial meniscus, confirmed on magnetic resonance imaging. (MRI).
Based on this, the evidence shows that the Veteran is entitled to a separate 
20 percent rating for dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  The 20 percent rating is the highest available under this rating code, and no additional discussion is necessary.  38 C.F.R. § 4.71a, Codes 5258; Johnston v. Brown, 10 Vet. App. 80, 85 (1995).  Entitlement to an increased rating under different rating codes will be addressed in the remand section at the end of this decision.  
REASONS FOR REMAND
1. The claim for an increased rating for the residuals of a fracture of the left patella is remanded.
The record shows that the Veteran reports daily flare-ups of his left knee disability precipitated by walking and regular usage.  While both VA examinations have described some of the additional impairment that results during flare-ups, neither examiner has attempted to quantify this impairment in terms of additional limitation of motion.  The Veteran should be afforded an additional VA examination to obtain such an estimate.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).
Furthermore, the May 2016 letter from the Veteran’s private doctor notes that he has treated the Veteran’s left knee disability since the 1990s.  While this doctor has written two additional letters and completed the March 2013 Knee and Lower Leg Conditions Disability Benefits Questionnaire in support of the Veteran’s claim, it does not appear than an attempt to obtain the Veteran’s treatment records has been made.  The Board believes that any records of the Veteran’s ongoing treatment during the appeal period would be helpful in the evaluation of his disability. 
2. The claim for TDIU is remanded.
The Board recognizes that a claim for an increased rating encompasses a claim for TDIU if raised by the record or the Veteran.  Rice v. Shinseki, 22 Vet. App. 447 453-54 (2009).  In this case, the May 2016 letter notes that the Veteran has not held full-time employment since August 2011 and that he is limited by his painful joints.  Therefore, a claim for TDIU has been raised.  
The claim for TDIU is inextricably intertwined with the claim for an increased rating for the left knee, and thus the Board will defer consideration of the appeal with regard to entitlement to TDIU.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). 
The matters are REMANDED for the following actions:
1. Ask the Veteran to complete a VA Form 21-4142 for Russell Remalia, D.O., for treatment records pertaining to the Veteran’s left knee disability for the period from March 2013 to the Present.  Make two requests for the authorized records from Russell Remalia, D.O., unless it is clear after the first request that a second request would be futile.  The Veteran should be informed that in the alternative he may obtain and submit these records on his own, and that it is his responsibility to ensure that any private records he wishes to be considered as part of his claim are received by VA. 
2. After associating records from step #1 schedule the Veteran for an examination of the current severity of his left knee disability.  The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living.  

(CONTINUED ON THE NEXT PAGE)
 
If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

 
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. L. Prichard, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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