Citation Nr: 18132238
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 11-04 687
DATE:	September 6, 2018
ORDER
Since May 11, 2012, a 20 percent rating for left knee meniscal tear is granted. 
REMANDED
Entitlement to an evaluation in excess of 20 percent for service connected left knee post-operative patellar subluxation since May 11, 2012 is remanded.
Entitlement to an evaluation in excess of 10 percent for left knee disability with limitation of motion due to pain since May 11, 2012 is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
FINDING OF FACT
Since May 11, 2012, the Veteran’s left knee meniscal tear is productive of frequent episodes of locking, pain, and effusion.
CONCLUSION OF LAW
Since May 11, 2012, the criteria for entitlement to an evaluation of at least 20 percent for left knee meniscal tear have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5258.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Navy from January 1978 to September 1980.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  In May 2012, the Veteran testified at a travel board hearing at the RO before the undersigned Veterans Law Judge.  These issues were previously before the Board in April 2014 and December 2017 and remanded for additional development.  
The Veteran contends that a higher rating is warranted for his left knee disability. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  
Disability evaluations are determined by the application of a schedule of ratings, which 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.  The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations.  38 C.F.R. § 4.1.  
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  
Although the evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability.  VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  
Under DC 5258, when semilunar cartilage is dislocated with frequent episodes of locking, pain and effusion into the joint, a 20 percent rating is assigned.  38 C.F.R. § 4.71a, DC 5258.  
The Veteran’s left knee is currently evaluated as 20 percent disabling for post-operative patellar subluxation under DC 5257 and 10 percent disabling for limitation of motion under DC 5260.  A May 2014 letter from the Veteran’s VA physician notes that the Veteran’s symptoms of pain are serious and severe as evidenced by the opiod medications he is on.  The May 2015 VA examination shows a meniscal tear with frequent episodes of joint locking and pain.  The January 2016 VA examination shows the residual symptom of the Veteran’s 1986 surgery is episodic pain.  The February 2018 DBQ shows status post meniscectomy with pain, swelling, and scars.  The May 2018 VA examination shows left sided meniscal tear with frequent episodes of locking, joint pain, and effusion.  Accordingly, the Board finds that a separate 20 percent rating is warranted under DC 5258 to compensate her for these symptoms.  See Lyles v. Shulkin, 29 Vet. App. 107 (2017).
REASONS FOR REMAND
At the May 2018 VA examination, the Veteran reports that left knee surgery is planned for May 2018.  In light of this statement indicating that the Veteran’s left knee condition has worsened, a VA examination is needed to properly assess the current severity of his left knee disability.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  Further, the most recent medical evidence of record is an April 2018 VA treatment record.  All VA and private treatment records since April 2018 must be obtained.  
The Veteran’s claim for TDIU is inextricably intertwined with his pending claims for increased ratings for his left knee conditions.  Thus, a decision by the Board on the Veteran’s TDIU claim would, at this point, be premature.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc).
The matters are REMANDED for the following action:
1. Contact the Veteran and request that he identify any and all outstanding VA and private treatment records related to his left knee disability, to include all treatment since April 2018.  After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file.  Any negative response should be in writing and associated with the claims file.
2. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of the nature, extent and severity of his left knee symptoms and the impact of the condition on his ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.
3. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his left knee disabilities.  The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed.
The examiner should identify all left knee conditions found to be present.  The examiner should conduct all indicated tests and studies, to include range of motion studies.  The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present.  
The examiner should also state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time.  
Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.  If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Samuelson, 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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