Citation Nr: 1621416 Decision Date: 05/27/16 Archive Date: 06/08/16 DOCKET NO. 14-24 885A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating higher than 10 percent for degenerative joint disease of the right knee (right knee disability). 3. Entitlement to a rating higher than 10 percent for residuals of fracture of the right great toe. 4. Entitlement to an effective date prior to April 6, 2010, for the award of service connection for depression. 5. Entitlement to an effective date prior to January 2, 2014, for the award of service connection for radiculopathy of the right upper extremity. 6. Entitlement to an effective date prior to April 6, 2010, for the award of service connection for temporomandibular joint (TMJ) disability. 7. Entitlement to an initial rating higher than 50 percent for depression. 8. Entitlement to an initial rating higher than 10 percent for degenerative changes of the cervical spine. 9. Entitlement to an initial compensable rating for TMJ disability. 10. Entitlement to an effective date prior to January 2, 2014, for the award of total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 11. Entitlement to an effective date prior to January 2, 2014, for eligibility to Dependents' Education Assistance (DEA) benefits. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from February 1997 to November 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal form December 2010 and June 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The record before the Board consists of an electronic file known as Virtual VA and an electronic file known as the Veterans Benefits Management System (VBMS). The issues of entitlement to increased ratings for the right knee and right great toe disabilities are decided in the decision below and the remaining claims are addressed in the REMAND that follows the ORDER section of the decision. FINDINGS OF FACT 1. Throughout the pendency of this claim, the Veteran's right knee disability has been manifested by painful motion and limitation of flexion to not less than 45 degrees; neither limitation of extension, ankylosis, dislocated or removed semilunar cartilage, impairment of the tibia or fibula, recurrent subluxation and instability, nor genu recurvatum has been present. 2. The Veteran's right great toe disability is manifested by no more than moderate foot symptoms. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5260, 5261 (2015). 2. The criteria for a rating higher than 10 percent for the right great toe disability have not been met. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5283, 5284 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided adequate notice regarding his claims in an April 2010 letter, prior to the October 2010 rating decision on appeal. The record also reflects that all pertinent available service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. The Veteran has been afforded appropriate VA examinations for the claimed disabilities, most recently in March 2013. In a July 2014 written statement, the Veteran's representative asserted that the most recent VA examinations are inadequate because they were conducted in a "pristine environment," and the findings do not reflect an accurate reflection of the Veteran's physical condition under every day, physical stress. However, the Board does not find this to be the case. As reflected in the May 2010 and March 2013 examination reports, the examiners evaluated the disabilities following repetitive use and considered the Veteran's own descriptions of the functional impairment and manifestations of the right knee and right toe disabilities. Notably, the Veteran's representative has not identified any specific error with the VA examinations findings, nor has the Veteran claimed the disabilities have worsened since the March 2013 examination. Thus, the Board finds the VA examinations to be adequate for adjudication purposes. Accordingly, the Board will address the merits of the Veteran's claims. General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings. Factual Background and Analysis- Right Knee Disability The Veteran seeks a rating higher than 10 percent for his service-connected right knee disability. By way of history, the RO granted service connection for residuals of a right patella knee fracture in a May 2000 rating decision and assigned an initial 10 percent rating, effective November 1999. In April 2010, the Veteran filed the claim for an increased rating presently on appeal. Pursuant to Diagnostic Code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5260 addresses limitation of motion with respect to flexion. Under this diagnostic code, flexion of the leg limited to 60 degrees warrants a noncompensable rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a , Diagnostic Code 5260. Diagnostic Code 5261 addresses limitation of motion with respect to extension. Extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a , Diagnostic Code 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a , Plate II. The VA General Counsel also has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 17, 2004). It is the intent of the schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight; a 20 percent evaluation if it is moderate; or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The removal of semilunar cartilage warrants a 10 percent rating if it is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. In response to his claim for an increased rating, the Veteran underwent a VA joints examination in May 2010. He reported experiencing pain, stiffness, a lack of endurance, and locking of his right knee. He treated his symptoms with prescription pain medication as needed. Flare ups, characterized by increased pain and occasional locking of the joint, occurred daily with prolonged standing and navigating stairs. He denied the use of any ambulatory aids or having episodes of dislocation or recurrent subluxation. The physical examination revealed patellar grinding, diminished motion of the patellar and pain with manipulation of the right knee joint. There was no evidence of ankylosis. The Veteran demonstrated right knee flexion from zero to 140 degrees and right knee extension to zero degrees. The examiner noted objective evidence of pain with range of motion testing and that the Veteran's range of motion remained unchanged with repeated testing. Examination of all ligaments of the right knee was normal, and testing of the right medial and lateral meniscus was negative. There was no evidence of instability of the right knee noted. The examiner determined the Veteran had functional limitations with walking and standing in that he was limited to distances of a mile and was unable to stand for longer than 30 minutes. An associated X-ray examination revealed mild degenerative joint disease of the right knee. In a March 2011 written statement, the Veteran's representative indicated that the Veteran experienced symptoms of weakness, instability, constant pain, an inability to straighten his leg without discomfort, and had difficulty squatting and standing due to his right knee disability. During a March 2013 VA examination, the Veteran reiterated his symptoms of constant right knee pain and reported having difficulty with standing or keeping his leg straight. His knee was worse with standing versus walking. He demonstrated knee flexion to 110 degrees, with pain beginning at 110 degrees, and extension to zero degrees, without pain. His right knee range of motion was unchanged with repetitive use testing. The examiner identified the functional loss or impairment due to the right knee as less movement than normal and pain on movement. According to the examiner, it was not feasible to determine any additional limitations of the Veteran's range of motion without resorting to mere speculation. Joint stability testing was normal. There was no evidence of a history of subluxation or dislocation, and the Veteran was not found to have had a meniscal condition. Palpation of the right knee elicited pain. No other physical findings were recorded. The examiner determined that the Veteran's right knee pain could significantly limit his functional ability during flare ups and that the Veteran was limited from frequent kneeling, jumping, and walking on uneven terrain. VA treatment records dated during the pendency of the claim reflect intermittent treatment for the Veteran's right knee and document symptoms and findings similar to those found on the VA examinations. Based on this evidence the Board has determined that the Veteran is not entitled to more than a disability rating of 10 percent for the limitation of motion of the right knee. Extension is normal in the knee throughout the pendency of this claim, thus there is no basis for awarding a rating for limited extension. Again, for a 20 percent rating under Diagnostic Code 5260, flexion must be limited to less than 45 degrees. Even with consideration of all relevant disability factors, at no time during the pendency of the claim has the flexion of the right knee been limited to the extent required for a higher rating. The Board has considered the Veteran's complaints of pain and finds that they are consistent with the symptoms found on examination throughout the pendency of the claim. He has been compensated for this painful motion in the 10 percent rating presently assigned for his right knee. The Board has also considered whether the Veteran's right knee disability warrants a higher or separate compensable evaluation under any other provision of the rating schedule during the period on appeal. Sufficient evidence of arthritis has not been shown to warrant consideration of rating higher than 10 percent at any time during the claim (Diagnostic Code 5003). A separate rating for recurrent subluxation and instability is not warranted as all objective testing has been negative for the presence of subluxation or instability (Diagnostic Code 5257). Additionally, the medical evidence has not demonstrated ankylosis (Diagnostic Code 5256), impairment of the tibia and fibula (Diagnostic Code 5262), genu recurvatum (Diagnostic Code 5263), or symptomatic removal of semilunar cartilage (Diagnostic Code 5259). Further, although the Veteran has alleged locking of the knee, the objective evidence does not indicate that he experiences frequent episodes of locking, pain, and effusion into the joint so as to warrant a higher rating under Diagnostic Code 5258 (cartilage, semilunar, dislocated). The Board has considered whether there is any other schedular basis for granting this claim but has found none. Essentially, the Board finds no basis to grant a rating higher than the 10 percent evaluation currently assigned for the right knee disability; thus, the appeal must be denied. Factual Background and Analysis- Right Great Toe Disability As for this claim, the Veteran contends that his service-connected right great toe disability warrants a rating higher than 10 percent. The RO granted service connection for residuals of a right great toe fracture in the March 2000 rating decision and assigned a 10 percent rating, effective November 1999. The present appeal arises from the Veteran's April 2010 claim for an increased rating for the disability. The Veteran's residuals of a fracture of the right great toe have been evaluated under Diagnostic Code 5283 which provides the rating criteria for evaluation of malunion or nonunion of the tarsal or metatarsal bones. Under Diagnostic Code 5283, 10 percent rating will be assigned for moderate impairment associated with the malunion, 20 percent for moderately severe, and 30 percent for severe impairment. The note to the Diagnostic Code provides that a 40 percent rating will be assigned if there is actual loss of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5283. Foot injuries may also be evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, which provides that a 10 percent disability rating is warranted if the disability is moderate, a 20 percent disability rating is warranted if the disability is moderately severe and a 30 percent disability rating is warranted if the disability is severe. 38 C.F.R. § 4.17a, Diagnostic Code 5284. The words "slight," "moderate," and "severe" are not defined in the rating schedule. Use of terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. On a May 2010 VA examination, the Veteran reported having pain in his right great toe with standing, walking, and at rest. He did not use any assistive devices due to the disability, and he reported the ability to stand and walk for 15 to 30 minutes. The physical examination revealed the interphalangeal joint of the right great toe was slightly tender to palpation, but normal in appearance and function. Slight pain was noted with the Veteran rising on his toes, which he was able to perform satisfactorily. There was no evidence of callosities, breakdown, unusual shoe wear pattern, skin changes, or vascular changes of the right foot. The examiner noted there were no other abnormalities or residuals from the Veteran's right great toe fracture. A March 2013 VA foot disability examination report documents the Veteran's in-service history of a right great toe fracture. On the physical examination, the Veteran's gait and posture were within normal limits. The examiner noted no other pertinent, physical findings or complications. The X-ray showed a small, old avulsion of the distal phalanx of the right big toe. There was no finding of a malunion or nonunion of the tarsal or metatarsal bones, hallux rigidus, hallux valgus, Morton's neuroma, hammer toe, pes cavus, any other foot injuries, or bilateral weak foot. The examiner determined that the Veteran was limited from participating in frequent running and jumping due to the right foot disability. VA treatment records dated during the period of the claim do not document symptoms or clinical findings applicable to the relevant rating criteria. Having carefully reviewed the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his right great toe disability. While the evidence shows that the Veteran experiences pain and tenderness of the big toe, these symptoms do not more clearly approximate a moderately severe malunion or nonunion of the metatarsal bone or a moderately severe foot injury. Indeed, the objective evidence does not show any limitation of motion, weakness, abnormal weight bearing, or deformities due to the right great toe. There is no indication that the Veteran requires on-going treatment for his right toe disability or that he experiences functional limitations that rise to the level of a moderately severe disability. Even with consideration of the Veteran's reported symptoms, the evidence does not support the assignment of a higher rating in this case. Given this, the next-higher, 20 percent rating is not warranted under either Diagnostic Code 5283 or 5284. The Board has considered whether there is any other schedular basis for granting a higher rating but has found none. Accordingly, the claim for a rating higher than 10 percent for the right great toe disability is denied. Additional Considerations Consideration has been given to assigning staged ratings for the Veteran's right knee and right toe disabilities; however, at no time during the period in question have the disabilities warranted more than the schedular ratings upheld herein. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether this case, or any component thereof, should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for 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 evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case the manifestations of the service-connected right knee and right great toe disabilities are contemplated by the schedular criteria. The applicable diagnostic code used to rate the Veteran's disabilities provides for ratings that account for his current symptomatology. The disabling effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for an extra-schedular rating is unnecessary at this time. Finally, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. ORDER A rating higher than 10 percent for a right knee disability is denied. A rating higher than 10 percent for a right great toe disability is denied. REMAND Although the Board regrets the delay, additional development is needed with respect to the PTSD claim. Initially, the Board notes that the Veteran has been awarded service connection for depression, found to have been aggravated by his military service. However, the instant claim focuses on whether service connection may also be warranted for PTSD due to in-service sexual harassment and an April 1998 in-service motor vehicle accident. In this regard, the Veteran reported that he received treatment at Darnell Army Hospital following his April 1998 in-service motor vehicle accident. The RO requested the records from this facility in April 2013, but did not receive a response. There is no indication that additional attempts to obtain this evidence have been undertaken, or that the RO has determined that these records are unavailable. VA has a duty to make as many requests as necessary to obtain records in the custody of a Federal department or agency unless concluding they do not exist or that further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). Thus, on remand, the RO must make an additional attempt to obtain this evidence. An additional examination is also needed for the Veteran's claim because it is unclear from the current medical evidence whether he has PTSD due to service. Specifically, a June 2014 VA examiner determined that the Veteran did not meet the criteria for a PTSD diagnosis and that his psychiatric symptoms were better attributable to polysubstance abuse, in remission. However, the examiner did not provide any rationale to support this conclusion, offered no explanation as to why the criteria for a PTSD diagnosis were not met, and did not reconcile a May 2014 VA diagnosis of PTSD due to sexual harassment during service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the deficiencies with the June 2014 VA opinion, the Veteran must be afforded a new VA examination to determine whether he has PTSD due to military service. As for the remaining claims, in a June 2014 rating decision, the RO granted service connection for depression and assigned an initial 50 percent rating for the disability effective April 6, 2010; granted service connection and assigned a 10 percent rating for a cervical spine disability; granted service connection for right upper extremity radiculopathy effective from January 2, 2014; granted service connection for a TMJ disability and assigned a noncompensable rating from April 6, 2010; and granted TDIU and DEA benefits effective from January 2, 2014. In January 2015, the Veteran filed a notice of disagreement (NOD) and expressed disagreement as to the initial ratings and effective dates assigned for the depression and TMJ disabilities, the initial rating assigned for the cervical spine disability, and the effective dates assigned for his right arm radiculopathy and the award of a TDIU and DEA benefits. The RO has not provided the Veteran with a statement of the case (SOC) in response to the NOD, despite his representative's repeated requests. Because the NOD placed these issues in appellate status, these matters must be remanded for the originating agency to issue an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO should provide the Veteran and his representative with an SOC for all issues identified in the January 2015 NOD submitted with respect to the June 2014 rating decision. The RO must inform them of the requirements to perfect an appeal with respect to these new issues. If the Veteran perfects the appeal, the RO should ensure that all indicated development is completed before the issues are certified for appellate consideration. 2. Send the Veteran a notification letter that contains all the required information pertaining to a claim for PTSD based on in-service personal assault. The letter must inform the Veteran that he may submit alternative forms of evidence to corroborate his asserted in-service personal assault. The letter must also suggest potential sources for such evidence. 3. Undertake appropriate development to obtain all outstanding VA and private medical evidence pertinent to the claims being remanded. 4. Then, schedule the Veteran for a VA examination by a VA psychiatrist or psychologist, who has not previously examined the Veteran, to determine whether PTSD has been present at any time during the claim. All pertinent evidence of record must be made available and reviewed by the examiner. Based on a review of the Veteran's pertinent history and the examination, the examiner should confirm or rule out whether the Veteran has had PTSD, due in part to in-service sexual harassment or the 1998 motor vehicle accident, at any time during the period of the claim. If the examiner determines PTSD has not been present during the period of the claim, the examiner should explain why a diagnosis of PTSD was not warranted. In this regard, the examiner should fully discuss all relevant evidence. If a PTSD diagnosis is warranted, the examiner should identify the elements supporting the diagnosis. If the diagnosis is based at least in part upon sexual harassment in service, the examiner should state whether there were any behavioral changes following the harassment that are indicative of the incident(s). A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 5. Undertake any other indicated development. 6. Then, readjudicate the claim for service connection for PTSD. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs