Citation Nr: 1614485
Decision Date: 03/23/16	Archive Date: 04/25/16

DOCKET NO. 09-49 040    DATE  MAR 23 2016


On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for Crohn’s disease.

2.  Entitlement to an effective date earlier than September 26, 2013, for the award of service connection for depressive disorder, not otherwise specified (NOS).

3.  Entitlement to an initial rating in excess of 30 percent for depressive disorder, NOS.

4.  Entitlement to a rating in excess of 30 percent for total left knee replacement.

5.  Entitlement to a rating in excess of 30 percent for asthma.

6.  Entitlement to a total disability rating based on individual unemployability (TDIU).

(The issues of entitlement to service connection for left hip, low back and left leg disabilities will be addressed in a separate decision).


REPRESENTATION

Veteran represented by:  Stacey P. Clark, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD 

Michael Sanford, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1977 to May 1980.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2013, December 2013, and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In November 2015, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of that proceeding is of record.

The issue of entitlement to a TDIU addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  An August 2003 rating decision denied entitlement to service connection for Crohn’s disease. The Veteran did not perfect an appeal of that rating decision and new and material evidence was not received within one year of its issuance.

2.  Evidence received since the August 2003 rating decision denying service connection for Crohn’s disease does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim.

3.  The Veteran submitted a claim for entitlement to service connection for depressive disorder NOS on September 14, 2007.

4.  Depressive disorder NOS does not impact social and occupational functioning.

5.  Throughout the appeal period, the Veteran’s left knee disability has been manifested by no limitation of extension and limitation of flexion to 90 degrees, even when considering pain, and without evidence of weakness.

6.  Throughout the appeal period, asthma has been manifested by Forced Expiratory Volume in 1 second (FEV-1) of 111 percent predicted and a FEV-1/Forced Vital Capacity (FVC) of 77 percent; there is no indication of at least monthly visits to a physician for required care of exacerbations or intermittent courses of systemic corticosteroids.


CONCLUSIONS OF LAW

1.  The August 2003 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §20.1103 (2015).

2.  New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for Crohn’s disease. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

3.  The criteria for an effective date of September 14, 2007, but no earlier, for the grant of service connection of depressive disorder NOS are met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155 (as in effect prior to March 24, 2015), 3.400 (2015).

4.  The criteria for an initial rating in excess of 30 percent for depressive disorder NOS are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9434 (2015).

5.  The criteria for a rating in excess of 30 percent for total left knee replacement are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256-57, 5260-62 (2015).

6.  The criteria for a rating in excess of 30 percent for asthma are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6602 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 

Duties to Notify and Assist

VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Regarding the claims for an increased initial rating and earlier effective date for depressive disorder NOS, service connection was granted, thereby rendering 38 U.S.C.A. § 5103(a) notice moot because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Regarding the claims for increased ratings for asthma and a left knee disability, VA’s duty to notify has been satisfied through a notice letter dated March 2014, which fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his claims for increased ratings and of the Veteran’s and VA’s respective duties for obtaining evidence.

Regarding the claim to reopen, a January 2012 notice explained the finality of the August 2003 rating decision, the evidence necessary to reopen the previously denied claim, and what constitutes new and material evidence. But see VAOPGCPREC 6-2014 (VA is not required to provide notice of the information and evidence necessary to substantive the particular factual element or elements that were found insufficient in the previous denial of the claim). Likewise, the notice explained how to substantiate a claim for service connection, and informed the Veteran of the process by which disability ratings and effective dates are assigned. Accordingly, the Board finds that the duty to notify is satisfied for all claims.

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015). Here, service treatment records are associated with claims file, and all other available post-service treatment records, including Social Security Administration (SSA) records, and reports identified by the Veteran have also been obtained.

The Veteran has been afforded multiple VA examinations to assess the severity of his service-connected psychiatric, asthma, and knee disabilities. The Board finds those VA examinations are adequate for the purposes of evaluating the Veteran’s disabilities, as the examinations involved a review of the Veteran’s pertinent medical history as well as a clinical examination of the Veteran, and documented relevant symptomatology that are responsive to the rating criteria. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Additionally, the Veteran was afforded the opportunity to testify before the undersigned in November 2015. At the hearing, the undersigned identified the issues on appeal and sought to identify any pertinent evidence not currently associated with the record that might have been overlooked or was outstanding that might substantiate his claims. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, for reasons outlined above, the duty to assist is also met.


Merits


I. New and Material Evidence—Crohn’s disease

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2015).

Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board).

New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Here, service connection for Crohn’s disease was denied in an August 2003 rating decision. That decision also continued a left knee rating and denied service connection for a left hip condition. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. In this regard, the Board notes that the Veteran submitted a VA Form 9 in June 2004 in which he stated “I feel the decision [is] wrong.” In a June 2004 letter, the AOJ requested that the Veteran specify the issues with which he disagreed, noting that “[u]ntil clarification is received, your disagreement is considered inadequate.” The Veteran did not respond.

It is not reasonably apparent that the Veteran was disagreeing with the denial of service connection for Crohn’s disease in the June 2004 statement. See 38 C.F.R. § 20.201 (as in effect prior to March 24, 2015). While it is generally acceptable for a claimant to enter a vague or general notice of disagreement (NOD), such as when a claimant expresses total disagreement with a decision, or disagreement with the whole decision, there must at least be a reasonable identification of the decision or determination at issue, an expression of dissatisfaction or disagreement, and an expression of the intent to appeal. See Ledford v. West, 136 F.3d 776 (Fed. Cir. 1998) (while the legal reasons supporting a challenge need not appear in the NOD, an NOD must indicate disagreement with a specific determination). Here, as the Veteran did not respond to the AOJ’s request for clarification as to the nature of his disagreement with the August 2003 rating decision, the June 2004 VA Form 9 cannot be reasonably construed as a NOD. See 38 C.F.R. § 20.201 (as in effect prior to March 24, 2015). As such, the August 2003 rating decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103; cf Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156(c)).

At the time of the August 2003 rating decision, various treatment records, service treatment records (STRs) and statements of the Veteran were of record. Service connection was denied for no evidence of nexus between service and Crohn’s disease.

Since the August 2003 rating decision, various treatment records, records from the Social Security Administration (SSA), and the report of a July 2015 VA examination are of record.

SSA records do not refer to Crohn’s disease. VA treatment records note treatment for Crohn’s disease, but do not offer any evidence that Crohn’s disease is related to service. Moreover, the July 2015 VA examination report constitutes evidence against a finding of nexus, as the VA examiner concluded that the Veteran’s Crohn’s disease was not caused by or a result of military service.

The Veteran has offered no argument that service connection for Crohn’s disease is warranted. Indeed, the Veteran’s attorney acknowledged that, given his award of service connection for irritable bowel syndrome, service connection for Crohn’s disease is not warranted. See Board Hearing Tr. at 3.

As such, no new and material evidence has been received since the final August 2003 rating decision, and the claim is not reopened.


II. Earlier Effective Date

The Veteran seeks an effective date earlier than September 26, 2013, for the award of service connection for depressive disorder NOS.

The effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). In general, the effective date for an award of benefits will be based on the date of the claim that resulted in that award. See Williams v. Principi, 15 Vet. App. 189,195 (2001) (en banc), aff’d, 310 F.3d 1374 (Fed. Cir. 2002); Lalonde v. West, 12 Vet. App. 377, 380 (1999).

VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case.

Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015).

Moreover, the Court of Appeals for Veterans Claims (Court) has determined that the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was ultimately awarded was filed with VA. See Lalonde, supra, at 382.

By way of background, in a statement received at the RO on September 14, 2007, the Veteran indicated he was “in a very very stressful situation with ... trying to recover from a knee replacement surgery.” In a July 2008 rating decision, the RO noted that the Veteran “filed a new claim for depression ... received on September 14, 2007,” and denied the claim. The Veteran appealed that decision to the Board. Following a Board remand in December 2011, service connection for depressive disorder NOS was ultimately awarded in a December 2013 rating decision, for which an effective date of September 26, 2013, was assigned.

The AOJ assigned an effective date of September 26, 2013, based on medical evidence showing a diagnosis of depressive disorder and an association with the Veteran’s service connected left knee disability. In this regard, the Veteran’s attorney points out that a May 2008 VA treatment record shows an association between depression and the Veteran’s left knee disability. See July 2014 Post- Hearing Memorandum; see also May 1, 2008 VA Treatment Record. In any event, the Board finds the present case indistinguishable from Lalonde. There, the Court stressed that an effective date should not be assigned based on medical evidence. Rather, an effective date should be assigned based on the date of claim for which service connection was granted. See Lalonde, 12 Vet. App. at 380. The Board finds no reason to part from the applicable reasoning in Lalonde. As the Veteran’s claim was received on September 14, 2007, that date, and no earlier, is the appropriate effective date for the award of service connection for depressive disorder NOS.


III. Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994).


A. Depressive Disorder

The Veteran’s depressive disorder NOS is rated 30 percent disabling pursuant to Diagnostic Code 9434.

Under that diagnostic code, a 30 percent evaluation is warranted then there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). Id.

A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent disability evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); inability to establish and maintain effective relationships. Id.

A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id.

The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record are a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

The DSM-IV contemplates that the GAF scale will be used to gauge a person’s level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. While GAF scores are probative of the Veteran’s level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation.

The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM and replace them with references to the recently updated Fifth Edition (DSM- 5). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. As the RO certified the Veteran’s appeal to the Board on August 26, 2015, the claim is governed by the DSM-5. 79 Fed. Reg. 45094 (Aug. 4, 2014). In this regard, the September 2014 VA examination was conducted utilizing the DSM-5, and therefore no GAF score was assigned. However, the Board will still consider previously assigned GAF scores in addressing the instant appeal.

The Veteran was afforded a VA examination in July 2008. There, he reported being married for 27 years and having three children. He reported his relationship with his family was good. The Veteran reported seeing his mother and brothers every week. He reported having a close group of friends. The occasional use of alcohol was noted. Mood was noted as up and down and occasional mood swings were noted. Occasional nervousness and depression were noted. Sadness, crying episodes, anhedonia, decreased energy and irritability were noted. Mental statues examination revealed clean and neat appearance. The Veteran was cooperative, friendly, relaxed and attentive. Affect was appropriate and mood was good. The Veteran was oriented in all spheres. Judgment was good. Sleep impairment was denied. There were no panic attacks, ritualistic behaviors, suicidal or homicidal thoughts. Impulse control was fair, but no episodes of violence were noted. There was no problem with activities of daily living. Memory was normal. A GAF score of 69 was recorded. The examiner stated that there were no symptoms that were even transient or mild and symptoms were not severe enough to impact occupational and social functioning.

A VA examination conducted shortly thereafter in September 2009 showed no change in symptomatology. However, a GAF score of 76 was noted at that time.

The Veteran was afforded a VA examination in September 2014. There, the examiner stated that the Veteran’s symptoms were not severe enough to impact social or occupational functioning. The Veteran noted having been separated from his wife for 10 years. He reported great relationships with his children, grandchildren and siblings. He reported seeing his friends on a regular basis. He denied fights or arguments. Depressed mood that does not overwhelm the Veteran but sometimes lasting a week was noted. A mental status examination showed clean appearance, pleasant and cooperative behavior. He was oriented in all spheres. Thought processes were normal. The Veteran denied any hallucinations or delusions. Memory was normal. Suicidal and homicidal ideations were denied. Withdraw, isolation, occasional anhedonia, depressed mood, hopeless feelings and occasional anxiousness were noted. The examiner stated that psychiatric symptoms were unlikely to impact the Veteran’s employability.

VA treatment records dated during the appeal period generally discuss depressed mood and occasional anxiety.

At the Veteran’s November 2015 Board hearing, the Veteran’s attorney conceded that the Veteran’s symptomatology was consistent with those congruent to a 30 percent rating. See Board Hearing Tr. at 4.

In this case, a rating in excess of 30 percent is not warranted. Occupational and social impairment with reduced reliability and productivity has not been shown. There is no evidence of altered speech, panic attacks, difficulty understanding complex commands, impaired memory, impaired judgment, impaired abstract thinking, disturbance of motivation or mood, or difficulty in maintaining relationships. Indeed, the Veteran has maintained strong relationships with his children, grandchildren and family. Likewise, the Veteran retains friends, who he spends time with on a regular basis. The evidence indicates that the Veteran functions well socially and occupationally, with occasional depression and anxiety. To that end, all VA examiners have concluded that the Veteran’s symptoms were not severe enough to impact social and occupational functioning. Moreover, GAF scores throughout the record indicate very mild symptomatology, at best. Finally, the Veteran’s attorney conceded that the Veteran does not meet the criteria for a rating in excess of 30 percent.

Thus, for reasons outlined above, a rating in excess of 30 percent is not warranted for depressive disorder NOS.


B. Left Knee Disability

The Veteran’s left knee disability is rated 30 percent disabling pursuant to Diagnostic Code 5055.

Diagnostic Code 5055, applicable to knee replacements, provides that a 30 percent rating is warranted for a knee replacement with intermittent degrees of residual weakness, pain, or limitation of motion. It is noted that it should be rated by analogy to Diagnostic Codes 5256, 5261, or 5262 and a 30 percent rating is the minimum rating assignable under these criteria.

A 60 percent rating is assignable for a knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity.

Diagnostic Codes 5256 and 5262 apply to situations involving ankylosis and impairment of the tibia and fibula, respectively. However, as neither of those problems has been shown, those Diagnostic Codes will not be discussed further.

Under Diagnostic Code 5261, a 40 percent rating is warranted for extension limited to 30 degrees and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71, Diagnostic Code 5261.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995).

Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Id. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The Veteran was afforded a VA examination in June 2014. There, a total left knee replacement in 2007 was noted. Current symptoms were noted as pain, stiffness, worsening during weather changes, treated with naproxen and gabapentin. Flare- ups about four times per month were noted; however, while the examiner noted that pain could significantly limit functional ability during flare-ups, the examiner could not opine as to the degree without resorting to speculation, as the examiner was not present during a flare-up. Upon examination, flexion was to 90 degrees with no objective evidence of pain. There was no limitation of extension and no evidence of pain on extension. Repetitive-use testing revealed no further limitation of motion. There was tenderness or pain to palpation for joint lime or soft tissues. Both muscle strength and joint stability testing were normal. There was no evidence of patellar subluxation or dislocation. Shin splints were denied. Residuals scars were noted, but there were no painful or unstable scars and the total areas of all scars were less than 39 square centimeters. Gait was somewhat slow and the occasional use of a cane was noted. The knee was not acutely hot or inflamed. Left knee range of motion testing was performed without objective discomfort. Acute inflammation, effusion, bony deformity or overt instability was not shown. X-rays did not reveal arthritis. Limitation in employment requiring prolonged standing or walking was noted, as was limited stair climbing and squatting. The examiner noted that very light physical activity and sedentary activity were basically unaffected.

VA treatment records reveal treatment for left knee pain. Those records are consistent with the June 2014 VA examination. Records note pain, limitation of motion and the occasional use of a cane following the Veteran’s total left knee replacement. A December 2010 record notes that range of motion was restricted to 120 degrees and the Veteran was able to squat and get up without support. A September 2010 record notes the rare use of a cane.

At his November 2015 Board hearing, the Veteran testified regarding his left knee disability. The Veteran reported that he had to alter the way he walks. See Board Hearing Tr. at 9. He also described receiving epidural steroid injections. The Veteran testified that he takes pain medication and his knee will start jumping. See id at 10. The Veteran denied the use of a brace, but confirmed the occasional use of a cane. See id at 11. The Veteran denied that his left knee locks. See id. He stated that he tries not to walk. See id at 12.

A rating in excess of 30 percent is not warranted under Diagnostic Code 5055. There is no objective evidence of severe painful motion or weakness. To that end, at the June 2014 VA examination, the examiner stated that range of motion testing was conducted without objective evidence of discomfort. Indeed, both flexion and extension were completed without any objective evidence of pain on motion. The Board finds that the examiner’s findings, based on objective testing and medical expertise, probative. Indeed, the Veteran has not argued that he experiences severe painful motion or weakness. Given the objective VA examination results and the lack of evidence of any severe painful motion or weakness, a rating in excess of 30 percent under Diagnostic Code 5055 is not warranted.

The Board has given consideration to the possibility of assigning a separate evaluation under DC 5257 for subluxation or instability. In this regard, the Board notes that the Veteran has not reported, nor does the objective medical evidence show, subluxation or instability in the left knee, as indicated above. Accordingly, a separate evaluation under DC 5257 is not warranted.

Further, the maximum rating for limitation of flexion under DC 5260 is 30 percent where flexion is limited to 15 degrees. The Veteran is already in receipt of a 30 percent rating under DC 5055, which renders the possibility of a higher rating under DC 5260 not possible. Regarding DC 5261, a 40 percent rating requires that extension be limited to 30 degrees. The Veteran has not shown any limitation of extension. See June 2014 VA Examination Report. Thus, higher ratings under DCs 5260 or 5261 are not warranted.

The Board has also considered the effect of pain and weakness in evaluating the Veteran’s left knee disability. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). However, he has not demonstrated any additional limitation or functional loss/impairment following repetitive-use testing, as described above. Further, with regard to flare-ups, there is no evidence that extension is at all limited, even during flare-ups. Regarding flexion, the Veteran is already in receipt of a 30 percent rating, which would be the maximum schedular rating for limitation of flexion, rendering the regulations pertaining to functional impairment inapplicable with regard to DC 5260. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

Finally, the Board has considered whether a separate compensable rating is warranted for residual scars. The June 2014 VA examiner, however, explained that the Veteran’s left knee scars were superficial and the total area of those scars was not greater than 39 square centimeters (6 square inches) each. As such, a separate, compensable rating for the residual scar is not appropriate. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805.


C. Asthma

The Veteran’s asthma is rated 30 percent disabling pursuant to Diagnostic Code 6602.

Under Diagnostic Code 6602, a 30 percent rating is assigned for application when FEV-1 is 56-70 percent predicted, or; FEV-1/FVC of 57 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent evaluation may be assigned when FEV-1 is 40-55 percent predicted, or; FEV-1/FVC of 40-55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent, at least three per year courses of oral or parenteral systemic corticosteroids. Id. A 100 percent evaluation is warranted when FEV-1 is less than 40-percent predicted, or; FEV-1/FVC is less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of oral or parenteral systemic high dose corticosteroids or immuno-suppressive medications. Id.

Post-bronchodilator studies are required when pulmonary function tests (PFTs) are conducted for disability evaluation purposes, except when the results of pre- bronchodilator PFTs are normal or when the examiner determines that post- bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96.

The Veteran was afforded a VA examination in October 2014. There, intermittent use of inhalation bronchodilator therapy was noted. The use of oral or parenteral corticosteroids, oral bronchodilators, continuous use of antibiotics, and outpatient oxygen therapy were denied. There were no asthma attacks with episodes of respiratory failure in the prior 12 months. The Veteran denied any physician visits for required care of exacerbations. Pre-bronchodilator testing was conducted. FVC was 114% predicted. FEV-1 was 111% predicted. FEV-1/FVC was 77% predicted. Diffuse capacity of the lungs for carbon monoxide (DLCO) was 68% predicted. The Veteran was unable to complete post-bronchodilator testing, so such was not completed. See 38 C.F.R. § 4.96. Spirometry was within normal limits. The examiner explained that asthma would only require Veteran to avoid occupations that involve any cleaning products or paint, but caused no other employment limitations.

VA treatment records for asthma are of record. A January 2013 treatment record notes treatment with a z-pack and an albuterol inhaler as needed. A July 2010 record notes an FVC of 97% and an FEV-1 of 99%.

The Veteran did not testify at his November 2015 Board hearing regarding his asthma.

A rating in excess of 30 percent is not warranted. The evidence of record does not reveal that FEV-1 is 40-55 percent predicted or an FEV-1/FVC of 40-55 percent. See October 2014 VA Examination Report. Likewise, the Veteran denied at least monthly visits to a physician for required care of exacerbations or intermittent (at least three per year) courses of oral or parenteral systemic corticosteroids. See id.

Indeed, results from the October 2014 VA examination reveal that the Veteran no longer meets the criteria for a rating of even 30 percent under Diagnostic Code 6602. Thus, a rating in excess of 30 percent is not warranted.


D. Other Considerations

The Board has considered whether the rating criteria are inadequate for rating the Veteran’s depressive disorder, total left knee replacement and asthma, respectively.

The Veteran’s depressive disorder is manifested by social and occupational impairment due to such symptoms as depression and occasional anxiety. To the extent the above discussion reflects that the Veteran has some symptoms not specifically referenced by the applicable rating criteria, the Board emphasizes that the General Rating Formula for Mental Disorders specifically allows for consideration of symptoms not mentioned by the rating criteria, as reflected by the phrase “due to such symptoms as” that is included for the 30 percent criteria and higher. Therefore, the Board finds that his depressive disorder symptoms are contemplated by the applicable rating criteria, and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008).

Regarding total left knee replacement, his symptoms of pain and limitation of motion that affect ambulation, are all contemplated by the appropriate rating criteria as set forth above. Critically, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss, and the Veteran has not demonstrated any symptomatology that falls outside the scope of the applicable criteria. Thus, referral for consideration of an extraschedular evaluation is not warranted. Thun, 22 Vet. App. 111.

Finally, regarding asthma, the Veteran’s symptom of decreased lung capacity is contemplated by the rating criteria as set forth above. The effects of the Veteran’s disability have been fully considered and are contemplated in the rating schedule. Thus, referral for an extraschedular rating is unnecessary. Id.

Finally, the Board notes that the Veteran does not assert, and the evidence does not otherwise reflect, that evaluation of individual conditions fails to capture all of the service connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014). Thus, referral for an extraschedular rating based on the combined effects of multiple conditions is not warranted.


ORDER

New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for Crohn’s disease.

An effective date of September 14, 2007, and no earlier, for the award of service connection for depressive disorder NOS is granted.

An initial rating in excess of 30 percent for depressive disorder NOS is denied.

A rating in excess of 30 percent for total left knee replacement is denied.

A rating in excess of 30 percent for asthma is denied.


REMAND

In a separate decision, service connection is being granted for left leg, left hip and low back disabilities. The AOJ has not yet considered entitlement to a TDIU with respect to those disabilities, or recently service-connected irritable bowel syndrome, in the first instance.

Moreover, while the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one (see 38 C.F.R. § 4.16(a) (2015); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013)), the Board finds that the Veteran should be afforded a VA Social and Industrial Survey that provides a full description of the effects of all his service-connected disabilities on his ordinary activities, to include his employability. 38 C.F.R. § 4.10 (2015); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

As the matter is being remanded, updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action:

1.  Obtain VA treatment records dated from April 2015 forward.

2.  Then schedule the Veteran for a Social and Industrial Survey to ascertain the impact of his service-connected disabilities on his ordinary activities, to include his employability. The claims folder contents must be made available for review. The VA Social Industrial surveyor is requested to describe the Veteran’s employment history, and provide a frill description of the effects, to include all associated limitations, of the Veteran’s service-connected disabilities on his ordinary activities, to include his employability, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice- connected disabilities.

3.  Then, readjudicate the claim for a TDIU.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

S. BUSH
Veterans Law Judge, Board of Veterans’ Appeals