Citation Nr: 1645859	
Decision Date: 12/07/16    Archive Date: 12/19/16

DOCKET NO.  11-18 613A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1.  Entitlement to service connection for myotonic dystrophy type 2, to include as due to herbicide exposure and as secondary to statin use for his service-connected coronary artery disease.  

2.  Entitlement to an evaluation in excess of 10 percent for postoperative meniscectomy of the left knee with degenerative changes (hereinafter a "left knee disability").  

3.  Entitlement to an evaluation in excess of 50 percent for anxiety disorder, not otherwise specified (NOS).  

4.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to March 27, 2012.  


WITNESSES AT HEARING ON APPEAL

Veteran and spouse


ATTORNEY FOR THE BOARD

Journet Shaw, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from October 1966 to October 1969.  Among other awards, the Veteran received the Vietnam Campaign Medal and Army Commendation Medal.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in February 2010, November 2011, and February 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.  

In the February 2010 rating decision, the RO, in pertinent part, denied a higher than 10 percent evaluation for service-connected left knee disability.  The Veteran appeals for a higher evaluation.  

In the November 2011 rating decision, the RO in pertinent part, denied service connection for Parkinson's disease to include hand tremors (as originally claimed by Veteran) and entitlement to a TDIU.  The Veteran appealed the decision.  

In the February 2012 rating decision, the RO, in pertinent part, granted service connection for anxiety disorder NOS and assigned a zero percent rating, effective December 8, 2011.  The Veteran appeals for a higher initial evaluation.  

During the pendency of the appeal, the RO issued an April 2013 rating decision granting a 50 percent evaluation for anxiety disorder NOS, effective July 29, 2011.  The Veteran continues to appeal for a higher evaluation for anxiety disorder NOS.  AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating).  

The Veteran and his wife testified before a Decision Review Officer (DRO) at a March 2012 RO formal hearing and before the undersigned Veterans Law Judge (VLJ) at a May 2015 videoconference hearing.  Transcripts of these hearings are of record.

The Board has remanded, in pertinent part, the issues on appeal for additional development in August 2014 and August 2015.  As the actions specified in the remands have been completed, the matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).  

Following the most recent February 2016 supplemental statement of the case, the Veteran submitted additional evidence in support of his appeal.  The Veteran filed his substantive appeal in May 2013.  Accordingly, under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, this evidence is subject to initial review by the Board because the Veteran did not request in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence.  See 38 U.S.C.A. § 7105(e)(1) (West 2014).

The issues of entitlement to compensation under 38 U.S.C.A. § 1151 for myotonic dystrophy type 2, entitlement to service connection for peripheral vascular disease, and entitlement to special monthly compensation for aid and attendance have been raised by the record in a May 2016 statement, but have not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016).



FINDINGS OF FACT

1.  The Veteran is presumed to be exposed to herbicides during his active duty service.  

2.  The evidence does not demonstrate that the Veteran's currently diagnosed myotonic dystrophy type 2 had its onset during his active duty service, or is otherwise etiologically related to service; nor may it be presumed to have been incurred in, or aggravated by such service; and it was not caused or permanently aggravated by statin use for his service-connected coronary artery disease.  

3.  Throughout the appeal period, the Veteran's postoperative meniscectomy of the left knee with degenerative changes has been manifested by subjective complaints of giving way and weakness; and objective evidence of significant guarding, mild effusion, flexion of no less than 90 degrees with pain and functional loss exhibited by less movement than normal, weakened movement, incoordination, swelling, and interference with sitting, standing, and weight-bearing; but no ankylosis or recurrent subluxation.  

4.  Throughout the appeal period, the Veteran's anxiety disorder NOS is most appropriately characterized by occupational and social impairment with reduced reliability and productivity.  

5.  Throughout the appeal period, the evidence does not demonstrate that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment.  


CONCLUSIONS OF LAW

1.  The criteria to establish entitlement to service connection for myotonic dystrophy type 2, to include as due to herbicide exposure and as secondary to statin use for his service-connected coronary artery disease have not been met.  38 U.S.C.A. §§ 1110, 1113, 1116, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2016).

2.  The criteria to establish entitlement to an evaluation in excess of 10 percent for postoperative meniscectomy of the left knee with degenerative changes have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259, 5260, 5261 (2016).

3.  The criteria for an evaluation in excess of 50 percent for anxiety disorder NOS have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.126, 4.130, Diagnostic Code 9413 (2016).

4.  The criteria for entitlement to a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  Id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Id.   

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Id.  

I. Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Board finds that the notice requirements have been satisfied by letters in December 2009, September 2011, and November 2011.  

In October 2015, the RO, in compliance with the August 2015 Board remand, asked the Veteran to complete and submit the enclosed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) or provide information about his education and employment history.  As the Veteran was informed of the evidence required to substantiate his TDIU claim, and he chose not to submit any additional evidence, including the VA Form 21-8940, the Board will proceed to adjudicate the TDIU claim based on the evidence of record.

The Board concludes that the duty to assist has been satisfied as all pertinent service records, post-service treatment records, and lay statements are in the claims file.  In addition, the Veteran underwent VA examinations in December 2009, August 2011, October 2011, January 2012, March 2013, and November 2015, with a subsequent addendum opinion provided in November 2015.

Subsequent to the last VA examination for his left knee in November 2015, the Court in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on 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.  Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.  A review of the claims file reveals that the December 2009, October 2011, March 2013, and November 2015 VA examination reports include only active range of motion findings and do not include range of motion findings for passive range of motion.  They also do not specify whether the results are weight-bearing or non-weightbearing.  Nevertheless, the Board finds that a remand to satisfy the requirements of Correia is not warranted here.  

Initially, remanding for another VA knee examination would not remedy the lack of testing performed at the Veteran's December 2009, October 2011, and March 2013 VA examinations.  With regard to the most recent November 2015 VA examination, the Board finds that upon active range of motion testing, the clinical evidence shows that the Veteran exhibited no objective evidence of painful motion.  The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain.  In this case, the Veteran's lack of objective evidence of pain during his November 2015 VA examination demonstrates that Correia does not apply. 

In March 2012 and May 2015, the Veteran was provided an opportunity to set forth his contentions during the hearings before a DRO and the undersigned VLJ.  During those hearings the Veteran's representative, the DRO, and the VLJ explained the issues and asked the Veteran questions to ascertain the nature of his myotonic dystrophy, the extent of his left knee disability and anxiety disorder, and the impact of his service-connected disabilities on his ability to work.  The hearings were also focused on the elements necessary to substantiate his claims.  Neither the Veteran nor his representative has suggested any deficiency in the conduct of those hearings; and all pertinent evidence that might substantiate the claim was identified by the Veteran and attempted to be obtained.  Therefore, the Board finds that the DRO and VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).

VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim.  The Veteran has not identified any outstanding evidence that needs to be obtained.  All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review.

For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claims.

II. Service Connection

The Veteran originally claimed that his muscle weakness and loss of strength in his upper and lower extremities and hand tremors were manifestations of early stage Parkinson's disease.  He attributed his symptoms to his exposure to herbicides during his active duty service in Vietnam.  Alternatively, the Veteran contends that his symptoms were caused by the use of simvastatin, which was prescribed to treat his service-connected coronary artery disease.  Multiple lay statements described how the Veteran experienced uncontrollable hand tremors, was unable to lift or hold anything of weight, could not write, and had difficulty climbing stairs.  See November 2011, December 2011, and March 2012 DRO hearing transcript.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Pertinent law further provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent.  38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2016).  For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2016).  

Furthermore, VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents.  Those diseases that are listed at 38 C.F.R. § 3.309(e), including Parkinson's disease, shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service.  Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307(a)(6)(ii).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability.  In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b) (2016); see Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Thus, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Veteran's military personnel records confirm that he served in the Republic of Vietnam from May 1967 to May 1968.  As a result, the Veteran is presumed to have been exposed to herbicides during his active duty service.  

Service treatment records (STRs) do not document any findings related to complaints, treatment, or diagnosis for any symptoms related to muscular or neurological disorders.  A September 1966 enlistment examination showed normal clinical evaluation results.  No pertinent symptomatology was reported in the associated medical history.  STRs in May 1969 reflect that the Veteran experienced an injury to his left hand when he dislocated his left thumb playing basketball.  Radiographic evidence showed no evidence of fracture.  See May 1969 and June 1969 radiographic reports.  Upon separation, the Veteran's August 1969 examination noted the injury to his left thumb.  An August 1969 consultation report documents that the Veteran complained of mild aching in the metacarpal phalangeal (MP) joint and weakness with pinch.  An objective evaluation revealed good range of motion, only mild weakness of pinch, and mild tenderness at the ulnar aspect of the MP joint.  The Veteran was diagnosed with residuals of dislocation of MP joint of the left thumb.  

At his March 2012 DRO hearing, the Veteran testified that his symptoms of hand tremors began after service in 1970 or 1971.  He sought treatment for his hand tremors, but the doctor who treated him has since died, and he said those records were not available.  

Post-service VA treatment records from 2011 to 2015 document the Veteran's complaints of tremors and weakness.  

A November 2011 VA Neurology Consult documents that the Veteran reported having had a tremor since his 30's with worsening symptoms over the past year.  He described that the tremors were present in his upper extremities, which worsened with holding a heavy object in his hand or performing strenuous tasks, such as raking his lawn.  No familial history of tremors was reported.  Following an objective evaluation, the VA treating neurologist found no evidence of weakness on formal muscle testing.  Symptoms were found to be consistent with an essential or kinetic tremor which was made worse with action.  Parkinsonism or Parkinson's disease was ruled out as the Veteran demonstrated no bradykinesia, resting tremor, or other autonomic features of Parkinson's.  See Virtual VA, 11/28/2011, pg. 1.  

A January 2012 VA Rheumatology Note documents that the Veteran had been receiving physical therapy for generalized weakness.  The Veteran reported weakness in the proximal muscles and loss of muscle mass over the past few years.  See Virtual VA, 2/19/2013, pg. 162.

A July 2012 VA Neurology Outpatient Note reflects the Veteran's reported symptoms of aches and pain for the past six to seven years and some mild weakness.  The VA treating neurologist noted that the Veteran had been on a statin for years and his dosage of simvastatin was reduced in 2008.  No noticeable change in his weakness was reported.  The Veteran had noticed in the past few years that he had considerable atrophy of his arms and legs.  Use of simvastatin was discontinued in November 2011 due to concern over statin myopathy.  A February 2012 EMG (electromyography) showed no evidence of myopathy.  Following an objective evaluation, the VA treating neurologist found that the etiology of the Veteran's weakness and atrophy was unclear.  There was no indication for an inherited myopathy and stain myopathy was a possibility.  See Virtual VA, 2/19/2013, pg. 108.

A September 2012 EMG revealed no evidence for a cervical or lumbar radiculopathy.  There was electrodiagnostic evidence for diffuse myotonia.  See Virtual VA, 2/19/2013, pg. 84.

An October 2012 VA Rheumatology Fellow Note reflects that the Veteran had improvement in his pain symptoms, but not weakness with steroids.  Noting the lack of expertise in the area, the VA treating rheumatologist summarized the Veteran's differential diagnosis of proximal muscle weakness, statin exposure, and abnormal EMG as including a statin-associated autoimmune myopathy (which can respond to immune suppression and can appear after prior exposure to the drug), and a myotonic dystrophy or muscular dystrophy.  See Virtual VA, 2/19/2013, pg. 52.  

February 2013 VA treatment records confirm that genetic testing for myotonic dystrophy type 2 was positive.  Results of a muscle biopsy were also consistent with myotonic dystrophy with atypical features.  The diagnosis for myotonic dystrophy type 2 was found to be consistent with the Veteran's symptoms of tremor, weakness, myalgias and EMG findings.  See Virtual VA, 2/19/2013, pg. 1.  

An August 2013 VA Neurology Outpatient Note reflects that the Veteran continued to complain of diffuse joint pain and muscle pain, worse with movement, and tremors, mostly in his hands.  The VA treating neurologist noted that the Veteran had been diagnosed with myotonic dystrophy type 2 and also found it interesting that his symptoms began in setting of high dose simvastatin use.  See Virtual VA, 10/27/2015, pg. 453.  

An April 2014 VA Rheumatology Fellow Note documents that a possibility of statin (simvastatin) associated myopathy on the background of myotonic dystrophy was entertained but not proven.  See Virtual VA, 10/27/2015, pg. 306.  

In November 2015, the Veteran underwent a VA examination for his neuromuscular disorder.  The Veteran reported his history of tremors and weakness.  Upon objective evaluation, the VA examiner confirmed that there was no clinical evidence of Parkinson's disease on examination.  Citing the results of the 2012 and 2013 diagnostic testing, the VA examiner explained that the Veteran's actual diagnosis was myotonic dystrophy type 2.  

In a November 2015 addendum VA medical opinion, the VA examiner explained that myotonic dystrophy type 2 is a genetic disorder which is congenital.  The examiner opined that the Veteran's myotonic dystrophy type 2 was less likely than not caused by Agent Orange exposure.  The VA examiner based his conclusion on his inability to find valid literature to suggest Agent Orange would cause this disorder in an otherwise healthy individual.  Additionally, the VA examiner found that the Veteran had been prescribed simvastatin for his service-connected ischemic heart disease to decrease the risk of further cardiovascular disease.  The VA examiner concluded that the Veteran's myotonic dystrophy type 2 was not caused by simvastatin.  The simvastatin may have uncovered the myotonic dystrophy symptoms.  There is no indication in the literature to show that simvastatin use may contribute to permanent worsening of myotonic dystrophy type 2.  

In February 2016, the Veteran submitted an opinion from his private physician, Dr. R.S.R., who reiterated that statins may cause an earlier presentation of a genetic muscle disorder, but they do not cause it.  Dr. R.S.R. did suggest that the Veteran could have been provided other options as alternatives to the prescribed statins based on his apparent inability to tolerate the medications.  However, Dr. R.S.R. did not opine that the Veteran's use of statin permanently worsened his myotonic dystrophy type 2.  

Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for myotonic dystrophy type 2, to include as due to herbicide exposure and as secondary to statin use for his service-connected coronary artery disease, is warranted.  

The evidence demonstrates that the Veteran has been currently diagnosed with myotonic dystrophy type 2.  

Noting that the Veteran has been diagnosed with a congenital genetic disorder, the Board is aware that VA's Office of General Counsel (OGC) has issued an opinion that addresses whether service connection may be granted for disorders of a congenital or developmental origin.  In each of the three cases that were discussed in the opinion, the Veteran's disease was first manifested and diagnosed during the individual's military service.  VAOPGCPREC 82-90 (July 18, 1990).  However, in the present case, the Veteran's myotonic dystrophy type 2 did not manifest symptoms until after his discharge either in 1970 or 1971; and he was not diagnosed with the disorder until 2013, more than 40 years after his separation from the military.  Therefore, the Board finds that the guidance provided in the VA OGC opinion does not apply in this matter, and that the usual service connection analysis applies.  

As stated above, the Veteran is presumed to have been exposed to herbicides by virtue of his presence in Vietnam.  However, the Veteran has not been diagnosed with a presumptive disease for herbicide exposure.  Consequently, only direct service connection can form the basis for service connection with regard to his herbicide exposure.  

On that basis, the Board finds that the November 2015 VA medical opinion provides the most probative evidence as to whether the Veteran's myotonic dystrophy type 2 is etiologically related to his in-service herbicide exposure.  After reviewing the Veteran's claims file and medical records, the examiner concluded that the medical literature does not suggest that Agent Orange would cause myotonic dystrophy type 2 in an otherwise healthy individual.  Therefore, the Board concludes that direct service connection for myotonic dystrophy type 2 as due to herbicide exposure is not warranted.  

In addition, the Board finds that the November 2015 VA medical opinion and February 2016 private medical opinion provide the most probative evidence as to whether the Veteran's myotonic dystrophy type 2 was caused or aggravated by statin use for service-connected coronary artery disease.  Both opinions agree that the Veteran's statin use might have uncovered the myotonic dystrophy symptoms, but such statin use did not cause the disorder.  The November 2015 VA medical opinion also found that current medical literature does not indicate that simvastatin contributes to a permanent worsening of myotonic dystrophy type 2.  As the November 2015 VA examiner based his opinion on a complete rationale and a review of current medical literature, which is also buttressed by the February 2016 private opinion, the Board concludes that service connection for myotonic dystrophy type 2 as secondary to his statin use for service-connected coronary artery disease is not warranted.  

The only evidence of record that the Veteran's myotonic dystrophy type 2 was caused by his in-service herbicide exposure, or was caused or aggravated by his statin use, is the Veteran's lay assertions.  Although the Veteran is competent to describe his symptoms of tremors and weakness, he is not competent to relate his current myotonic dystrophy type 2 to his herbicide exposure or his statin use as he has not demonstrated that he has the requisite specialized knowledge to provide such etiological opinions.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Therefore, the Board finds that the Veteran's lay assertions are not competent to provide a medical link between his current myotonic dystrophy type 2 and either herbicide exposure or statin use.  So, the Veteran's assertions as to the etiology of his myotonic dystrophy type 2 offer little probative value.

In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for myotonic dystrophy type 2, to include as due to herbicide exposure and as secondary to statin use for service-connected coronary artery disease.  Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.

III. Higher Evaluations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  

The veteran's entire history is to be considered when making disability evaluations.  See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  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).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  

A. Left Knee Disability

The Veteran is seeking a higher than 10 percent evaluation for his service-connected left knee disability.  At his March 2012 DRO hearing, the Veteran testified that due to his left knee disability, he needed assistance from railings with going upstairs and had pain with walking for any distance.  He described feeling reluctant to use his left knee because it would give out on him when going up stairs and walking long distances.  He also described having left knee weakness.  In the past, he had received steroid shots, but he was currently taking Advil for the pain.  At his May 2015 Board hearing, the Veteran said that he had more instability in his left knee and now he has developed arthritis in the knee.  He testified that VA had offered to provide him with a chair lift to assist with going up stairs, but that he declined.  He said that instead he attended physical therapy, which has helped when he was able to attend the sessions regularly.  He denied currently taking any medications for the pain, but did use assistive devices (none specified at hearing).  

The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed.  As the instant claim for an increased rating was received in November 2009, the period for consideration will include evidence one year prior to the receipt of claim.

It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.

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.  38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205.  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 or evidenced by visible behavior of the claimant undertaking the motion.  Id.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Id.  The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention 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.  Painful motion is considered limited motion at the point that pain actually sets in.  See VAOPGCPREC 9-98.

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14 (2016).

The Veteran's left knee disability has been currently evaluated as 10 percent disabling, effective February 22, 1972, under 38 C.F.R. § 4.71a, Diagnostic Code 5259.  This rating, which has been effect for more than 20 years, is a protected rating, and cannot be reduced, except upon a showing of fraud on the part of the Veteran, or other circumstances not present in this case.  38 C.F.R. § 3.951(b) (2016).

Under Diagnostic Code 5259, a 10 percent evaluation is warranted for symptomatic removal of the semilunar cartilage.  This is the only available evaluation under this diagnostic code.

Diagnostic Code 5257 rates on the basis of recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (2015).  Slight recurrent subluxation or lateral instability of the knee is rated as 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated as 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated as a maximum 30 percent disabling.  Id. 

The Board observes that the words "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2016).  Use of terminology by VA examiners or other physicians, although an element of 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 (2016).

Diagnostic Code 5258 provides for a 20 percent evaluation on the basis of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258 (2016).  This is the only available evaluation under this diagnostic code.

Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion.  See 38 C.F.R. § 4.71a , Plate II.  Diagnostic Codes 5260 and 5261 provide for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively.

Other diagnostic codes pertaining to the knee and leg that provide for higher than 10 percent evaluations do not apply in this case, as the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256) or impairment of the tibia and fibula (Diagnostic Code 5262).

As background, at the time of the Veteran's initial 10 percent evaluation for his left knee disability under Diagnostic Code 5259, an April 1972 VA examination noted that the Veteran, following his meniscectomy, had complained of residual weakness, difficulty performing simple tasks (i.e., crouching, bending, jumping) without pain and locking of knee.  Objective findings revealed no crepitus, swelling, or atrophy with flexion limited by pain at 95 degrees.  All other range of motion movements were normal.  

During the relevant appeal period, VA treatment records from November 2008 to October 2015 reflect sporadic reports of left knee pain.  See October 2011 and March 2012 VA treatment records, Virtual VA, 11/28/2011, pg. 21 and 2/19/2013, pg. 147.  No regular left knee treatment was documented.  Other reports of weakness with walking up flights of stairs and walking on flat surfaces were noted, but no specific reference to his left knee was made.  No use of a cane or walker were reported, as the Veteran had declined them.  The Veteran had a shower chair and received assistance with doing his laundry and other household cleaning.  He reportedly still drove and denied having any falls.  See April 2013, July 2013, November 2013, December 2014, June 2015, and September 2015 VA treatment records, Virtual VA, 4/30/2013, pg. 4 and 10/27/2015, pg. 21, 132, 266, 371 and 403.

At a December 2009 VA examination, the Veteran reported his current left knee symptomatology, including intermittent pain, some weakness, occasional stiffness, and constant swelling.  Instability or giving way had resolved with meniscectomy.  He denied the use of assistive devices.  Upon objective evaluation, the examiner found that the Veteran had a normal gait with no significant noted limitations on standing and walking.  There were no indications of abnormal weight-bearing (e.g., breakdown, unusual shoe wear pattern).  No ankylosis, instability, or weakness was found.  Range of motion testing of the left knee revealed flexion at 135 degrees with pain and extension at zero degrees with pain.  Significant guarding was found as objective evidence of painful motion.  The examiner noted that the reported fatigue, weakness, and lack of endurance, but no incoordination with repetition did not additionally limit joint function.  Noting that the Veteran had surgical scars, the examiner did not find that they were painful, unstable, or had a total area greater than 39 square centimeters (cm).  Following an x-ray of the left knee, the examiner diagnosed the Veteran with left knee meniscal tear status post meniscectomy now with moderate tricompartmental post-surgical degenerative changes.  The examiner noted that the Veteran had mild to moderate functional impairment as subjectively reported.  

An October 2011 VA examination reflects that the Veteran currently reported having left knee symptoms of pain, giving way and weakness.  He described an incident one and a half years ago, where due to his left knee pain and giving out, he fell while carrying a gallon of milk upstairs.  No assistive devices were used.  An objective evaluation revealed left knee tenderness, muscle strength testing results at 3/5, normal joint stability test results, and no history of recurrent patellar subluxation or dislocation.  Range of motion testing of the left knee revealed flexion at 125 degrees with pain at 90 degrees and extension at zero degrees with no objective evidence of pain.  Repetitive use testing was not conducted due to pain.  Functional loss was found exhibited by less movement than normal, weakened movement, incoordination, pain on movement, swelling, and interference with siting, standing and weight-bearing.  The examiner noted that the Veteran's weakness of the upper leg was less likely related to his service-connected left knee disability.  Osteoarthritis was found to be a residual sign or symptom of his left knee meniscectomy.  Significant guarding, mild effusion, and mild medial and lateral joint tenderness were also noted.  The examiner did not find that the Veteran's left knee scars were painful, unstable, or had a total area greater than 39 square centimeters (cm).  The examiner noted that the Veteran's left knee impacted his ability to work based on his limitations with standing, climbing stairs, kneeling, squatting, and lifting or carrying, especially upstairs.  

At a March 2013 VA examination, the Veteran continued to report left knee pain and giving out, but no falls.  He also noted that his left knee was swollen, weak, and it clicked.  Locking symptoms were denied.  No pain medication or assistive devices were used.  Flare-ups of pain, stiffness, and decreased ability to bend were reported in cold weather.  Upon objective evaluation, the examiner found that the Veteran's left knee had no tenderness, normal muscle strength and joint stability testing results, and no evidence or history of recurrent patellar subluxation or dislocation.  Range of motion testing of the left knee revealed flexion at 90 degrees and extension at zero degrees without pain.  No additional limitation in range of motion upon repetitive use testing was found.  There was functional loss exhibited by less movement than normal, swelling, and deformity (genu varus deformity).  Pain was found to be a residual sign or symptom of his left knee meniscectomy.  The examiner diagnosed the Veteran with posttraumatic left knee osteoarthritis status post meniscectomy.  The Veteran's left knee disability impacted his ability to work based on his reported limitation in performing his job as an appraiser.  He said he stopped working in 2011, because his knee pain and decreased mobility prevented him from being able to bend down or lay down to appraise damages to cars.  The examiner found that the Veteran's degenerative joint disease with pain, genu varus deformity of the knee and decreased range of motion caused moderate impairment in performing jobs that require squatting, bending the knee, prolonged standing and excessive force placed on the knees.  

At a November 2015 VA examination, the Veteran reported no change in his left knee symptoms since his last evaluation, except that he had reportedly fallen several times due to his left knee weakness and giving out.  The Veteran attributed his increased left knee symptoms to his muscle problems more so than the joint itself.  He continued not to take pain medication.  He did occasionally use a cane, which was provided for muscle symptoms, but it also helped with his left knee pain.  An objective evaluation found no muscle atrophy or ankylosis.  The examiner found a generalized increase in muscle tone and minimal muscle weakness, which was unrelated to his service-connected left knee disability.  Range of motion testing of the left knee revealed flexion at 120 degrees and extension at zero degrees.  There was no objective evidence of pain with weight-bearing.  No additional limitation in range of motion or functional loss upon repetitive use testing was found.  The examiner found less movement than normal, deformity, and disturbance of locomotion.  All other findings, including his diagnosis, were unchanged from the last VA examination.  

In VAOPGCPREC 9-98, VA's General Counsel noted that with respect to Diagnostic Code 5259, removal of semilunar cartilage or meniscus may resolve restriction of movement caused by tears and displacements of the menisci.  However, the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion.  Thus, the General Counsel concluded that limitation of motion was a symptom contemplated by Diagnostic Code 5259.  VAOPGCPREC 9-98 (August 14, 1998).

As such, it would be pyramiding to award a rating for limitation of motion as a symptom of cartilage removal under Diagnostic Code 5259, and also rate that same limitation of motion under Diagnostic Codes 5260 or 5261.  Simply put, to award two ratings for one symptom (limitation of motion resulting from cartilage removal) is pyramiding under Esteban.  See Esteban, 6 Vet. App. at 262.  

Nevertheless, there will be circumstances when multiple symptoms result from the cartilage removal.  If limitation of motion and other symptoms result from cartilage removal, it would not be pyramiding under Esteban or 38 C.F.R. § 4.14 to award separate ratings by rating the "other symptoms" under Diagnostic Code 5259 and the "limitation of motion" under Diagnostic Codes 5260 or 5261.  In this case, the evidence shows that the Veteran has other left knee symptoms, aside from his limitation of motion, as a result of his left knee meniscectomy, including pain, weakness, giving way, stiffness, swelling, and clicking.  Therefore, any assignment of a separate evaluation for left knee limitation of motion would be appropriate under these circumstances.

In addition, separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee.  Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.  VAOPGCPREC 9-04 (Sept. 17, 2004).

Throughout the relevant appeal period, the Board finds that there is no basis upon which to increase the Veteran's current 10 percent evaluation for his left knee disability.  As previously discussed, Diagnostic Code 5259 only provides for a 10 percent evaluation.  Thus, the Board must consider whether the Veteran is entitled to higher or separate evaluations under other applicable rating criteria.  

According to clinical findings, the Veteran does not warrant a higher 20 percent evaluation under Diagnostic Code 5258 for semilunar dislocated cartilage with frequent episodes of "locking," pain and effusion into the joint.  Although the evidence shows that the Veteran had symptoms of pain and effusion, the Veteran specifically denied any symptoms of locking during the appeal period.  Indeed, the clinical findings are not in dispute.  The rating criteria under Diagnostic Code 5258 are conjunctive, not disjunctive, which means that the absence of the symptom of locking precludes the assignment of a higher 20 percent evaluation.  

Based on those same findings, the Board has considered whether the Veteran's left knee disability is entitled to a higher or separate evaluation based on limitation of motion under Diagnostic Codes 5260 or 5261.  At no time during the appeal period did the Veteran's left knee disability manifest flexion of less than 90 degrees or limited extension.  Indeed, despite the Veteran's demonstrated decreased range of motion, his left knee extension was normal and his flexion was not so limited that a compensable rating is warranted under the rating criteria.  Therefore, the Veteran is not entitled to a higher or separate evaluation for limitation of motion under Diagnostic Code 5260 or 5261 for his left knee disability.

In addition, the Board finds that throughout the appeal period a higher than 10 percent evaluation under Deluca for functional loss is also not warranted.  Deluca, 8 Vet. App. at 206; see also 38 C.F.R. §§ 4.40, 4.45.  At his October 2011 and March 2013 VA examinations where functional loss was demonstrated, the Veteran's flexion was limited to no less than 90 degrees.  To warrant a higher 20 percent evaluation under Diagnostic Code 5260 for limitation of flexion motion, the Veteran would have to show flexion limited to 30 degrees.  While the Veteran does demonstrate functional loss, such loss does not appear to be so significant as to equate to flexion limited to 30 degrees, a difference of 60 degrees from his objective range of motion testing results.  Notably, the examiners at his December 2009 and his most recent November 2015 VA examinations found no evidence of functional loss.  Thereby, the Board concludes that throughout the appeal period, the Veteran's left knee disability is no more than 10 percent disabling.  

Recognizing the Veteran's consistent and credible reports of left knee instability, the Board has considered whether a separate evaluation under Diagnostic Code 5257 is appropriate at any time during the period.  The evidence, both lay and clinical, do not support that any left knee instability rises to the level of slight instability which would warrant a separate 10 percent evaluation.  Of particular note, the Veteran has repeatedly stated that he did not use any assistive device for his left knee, even when offered.  Although at his recent November 2015 VA examination the Veteran reported occasionally using a cane, the cane was used primarily for his muscle symptoms and was not specifically used for any left knee instability.  Rather, the examination report noted that the cane was helpful in relieving his left knee pain.  The Veteran did not mention using the cane for support.  Furthermore, at several clinic visits from 2013 to 2015, the Veteran denied having any falls.  There was only one report of having fallen due to his left knee giving out at his October 2011 VA examination.  However, that one incident of falling, when taken into consideration with the other evidence (e.g., no assistive devices for support, no regular left knee treatment, and no objective findings of instability), does not demonstrate that the Veteran's left knee warrants a separate 10 percent evaluation for instability under Diagnostic Code 5257.  

Finally, each VA examination determined that scars located on the left knee were consistently found to be not painful or unstable and did not have a total area greater than 39 square centimeters.  Thus, consideration of a separate evaluation for scars is also not applicable.

B. Anxiety Disorder

The Veteran is seeking a higher than 50 percent evaluation for anxiety disorder NOS.  Various lay statements report that the Veteran had a tendency to overreact and was quick-tempered.  His wife said that the Veteran would shake while he slept that she attributed to dreams.  See December 2011 statements.  At his March 2012 DRO hearing transcript, the Veteran and his wife testified that he took Zoloft daily for his panic attacks, he had angry outbursts and then would "come down" twice a day, and he experienced anxiety every time he left the house or was put into uncomfortable situations.  Testimony at his May 2015 Board hearing transcript stated that the Veteran displayed symptoms of anger, negative attitude, hypervigilance, and concern of general health.  The Veteran had sleep problems, which he attributed, in part, to his non-service-connected sleep apnea.  He denied having nightmares, difficulty concentrating, or hygiene problems.  He still desired to perform housework, but he was limited physically.  To treat his anxiety and sleep issues, the Veteran went for mental health treatment every two or three months.  

The Veteran's anxiety disorder NOS has been currently evaluated as 50 percent disabling, effective July 29, 2011, under 38 C.F.R. § 4.120, Diagnostic 9413.  

Under Diagnostic Code 9413, which is governed by a General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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; and/or difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, Diagnostic Code 9413 (2016). 

A 70 percent rating is warranted for 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 a work-like setting); and/or inability to establish and maintain effective relationships.  Id. 

A 100 percent rating is warranted for 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name.  Id.  

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a) (2016).  Further, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b) (2016). 

One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)).  A GAF score of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships.  Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  38 C.F.R. § 4.130 (incorporating by reference VA's adoption of the DSM-IV for rating purposes).  The DSM was recently updated with a 5th Edition ("DSM-V"), and VA issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities.  70 Fed. Reg. 45093 (Aug. 4, 2014). This updated medical text recommends that GAF scores be dropped due to their "conceptual lack of clarity."  See DSM-V, at 16.  However, since the Veteran's claim was originally certified to the Board prior to the adoption of the DSM-V, the DMS-IV criteria will be utilized in the analysis set forth below.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.  Here, for the Veteran to receive a 70 percent rating, the evidence must show his symptoms result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

December 2011 VA Mental Health Notes document the Veteran's current psychosocial history and mental health symptomatology.  He stated that he has been happily married to his second wife and had a 14 year-old daughter.  Due to his health problems (e.g., bilateral hand tremor, muscle loss, weight loss), the Veteran described being under tremendous stress due to his inability to work (owned business as an appraiser).  He also felt stress from financial issues (wife had recently lost her job) and family problems.  Those same medical problems had kept him from golfing; an activity he once enjoyed.  Mental health symptoms included having chronic difficulty sleeping, nightmares, intrusive thoughts, irritability, and anger; being quick-tempered and hypervigilant; avoidance of large crowds and war movies; and having diminished interest in activities once enjoyed and decreased appetite.  He characterized his mood as okay and denied any suicidal or homicidal ideation.  See Virtual VA, 2/2/2012, pg. 1 and 3.

In January 2012, the Veteran underwent a VA psychiatric examination.  Following a mental health status examination, the examiner noted that the Veteran had symptoms of avoidance behavior; difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; depressed mood; anxiety; and mild memory loss.  Noting that the Veteran and his wife had reported that his deteriorating physical condition was severely impacting his social and occupational well-being, the examiner diagnosed the Veteran with anxiety disorder NOS and mood disorder due to a general medical condition.  The examiner found that the Veteran's mental status was not causing any occupational or social impairment.  

VA treatment records from January 2012 to December 2014 reflect the Veteran's participation in regular mental health treatment.  His wife reported that the Veteran's use of sertraline had improved his symptoms of anger, irritability and frustration tolerance, which had also improved issues at home.  Prior incidents of acting out his dreams in his sleep had resolved with the use of a CPAP (continuous positive airway pressure) machine.  The Veteran continued to report ongoing stressors, including his parenting issues (daughter's recent emotional difficulties), medical issues (deteriorating functional status), financial issues (concerns about ability to stay in home), and memory problems (found by a VA neuropsychologist to be exacerbating, but not significantly contributed by his psychiatric symptoms).  However, the Veteran felt he was able to deal with frustrations more constructively and with less anger.  Reporting problems with discipline, the Veteran stated that his daughter had begun cutting herself, and he found it to be attention-seeking behavior.  Socially, the Veteran described running a foundation for therapeutic horseback riding for autistic children and returning to football timekeeping, but was not officiating due to medical limitations.  See Virtual VA, 2/19/2013, pg. 22, 46, 107, 111, 137, 150, and 160; 4/5/2013, pg. 6; 4/30/2013, pg. 1; and 10/27/2015, pg. 343, 340, 353, 364, 378, 383, and 559.  

In November 2015, the Veteran was afforded another VA psychiatric examination.  The Veteran reported his current mental health symptomatology and psychosocial history.  Upon objective evaluation, including a mental status examination, the examiner found that the Veteran was adequately groomed and generally cooperative; expressed frustration; was mildly irritable and anxious; had a congruent, non-labile affect; and thought process was logical and goal-directed.  Symptoms included anxiety, mild memory loss, impairment of short and long-term memory, verbal anger management issues, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and difficulties in relationships and under stressful circumstances primarily related to irritability.  The Veteran denied suicide attempts and ideation.  The examiner was diagnosed with anxiety disorder NOS under DSM-IV and mild neurocognitive disorder of an unknown etiology, which accounted for his memory problems.  Overall, the examiner determined that the Veteran's service-connected anxiety disorder NOS caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal behavior, self-care and conversation.  Significant impairment in occupational functioning was attributable to physical health.  His service-connected anxiety disorder NOS accounted for irritability with others in his personal life and when he was working.  His non-service-connected mild neurocognitive disorder accounted for his memory problems in his social life and past work life.  

Throughout the appeal period, the Veteran's GAF scores ranged from 45 to 65.  See January 2012 VA examination, Virtual VA, 2/19/2013, pg. 22, 107, and 111; 10/27/2015, pg. 340, 353, 383, 456, and 559.

Based on a careful review of the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran's service-connected anxiety disorder NOS does not warrant a higher 70 percent evaluation.  In other words, the symptoms during this period, as described in the factual background above, do not manifest in the frequency, severity, or duration consistent with the symptoms identified in the next higher evaluation, which requires deficiencies in most areas.  The Veteran cites his difficulty obtaining employment and his assignment of special monthly compensation based on housebound criteria as evidence of his occupational impairment.  However, the Veteran also admits that his work-related problems are due to his medical, not psychiatric issues.  Notably, the November 2015 VA examiner concluded that the Veteran had significant occupational impairment that was attributed to his physical health.  In addition, his receipt of special monthly compensation is based on the overall evaluations of all of his service-connected disabilities and not based solely on his mental health status.  Therefore, the Board finds that the Veteran's employment issues and special monthly compensation assignment are not sufficient evidence to support a higher evaluation.  

The Board recognizes that the Veteran has had significant mental health symptoms for which he has received regular psychiatric treatment and taken continuous medication.  Nevertheless, those symptoms were mostly related to his irritability, anger, frustration, and sleep problems, which had become reportedly manageable.  His memory problems, which impacted his social and work life, were attributed to his non-service-connected neurocognitive disorder.  Moreover, despite his difficulties at home, he had a supportive relationship with his wife, and he demonstrated insight into his daughter's emotional problems.  Limited by his physical problems to engage in activities, the Veteran still showed an interest in participating socially with restrictions.  Finally, the Veteran's range of GAF scores from 45 to 65 represent serious to mild symptomatology.  However, the Veteran's VA examiners found that his occupational and social impairment was more consistent with no higher than a 30 percent evaluation.  Indeed, the clinical evidence during the relevant appeal period appears to support that the Veteran's symptoms were no more than moderate.  So while the Veteran clearly has a diminished level of functioning, the overall objective findings do not support a higher than 50 percent evaluation.  As a result, a higher 70 percent evaluation is not warranted at any time during the appeal period.

C. Extraschedular Consideration 

The Board has considered whether the Veteran's left knee disability and anxiety disorder NOS present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2016); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The Veteran's service-connected left knee disability is manifested by symptoms of chronic pain, swelling, stiffness, weakness, giving way, and limited motion, which impact his ability to stand for prolonged periods of time, squat, bend, or apply excessive force to his knees.  These symptoms and their resulting effects are fully contemplated by the rating schedule, which provides disability ratings on the basis of musculoskeletal deformity and contemplate a wide variety of manifestations of functional loss.  The Veteran's service-connected anxiety disorder NOS is manifested by anxiety, chronic sleep impairment, depressed mood, irritability, and anger.  The rating schedule takes into account various mental health symptoms and their resulting functional impairment and provides for higher evaluations for symptoms of increased frequency, severity and duration than is currently assigned.  The Board concludes that there is nothing exceptional or unusual about the Veteran's disabilities; the rating criteria adequately describe his disability level and symptomatology.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met.  38 C.F.R. § 3.321(b)(1).  In addition, the Veteran does not display any of the related factors, such as frequent periods of hospitalization or marked interference with employment, contemplated in the rating schedule as evidence that his disabilities were outside the governing norm.

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.  

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria.  

IV. TDIU

The Veteran contends that his service-connected disabilities prevent him from securing and following gainful employment.  

Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.15.  A substantially gainful occupation has been defined as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides."  M21-1 VA Adjudication Procedure Manual, Part IV.ii.2.F.1.c. (Updated September 24, 2015).  It also has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income."  Faust v. West, 13 Vet. App. 342 (2000).  Marginal employment shall not be considered substantially gainful employment.  Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage."  Id.  Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the Census Bureau.  38 C.F.R. § 4.16(a). 

When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341 , 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability.  38 C.F.R. § 4.16(a).

The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  Thus, the VA examiners' conclusions are not dispositive.  However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment.

The relevant appeal period has been limited to the period prior to March 27, 2012, since the Veteran is in receipt of 100 percent combined evaluation and special monthly compensation based on housebound criteria from March 27, 2012.  Thus, entitlement to a TDIU from March 27, 2012 is moot.  See Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008).  

In addition, as the claim for a higher evaluation for his service-connected left knee disability was initiated on November 13, 2009, the Board finds that the Veteran's TDIU claim is part and parcel of that increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  Therefore, the relevant appeal period for the Veteran's TDIU claim is from November 13, 2009 to March 26, 2012.  

From November 13, 2009 to July 28, 2011, the Veteran has a combined evaluation of 40 percent: coronary artery disease, status post coronary artery bypass graft as 30 percent disabling; postoperative meniscectomy of the left knee with degenerative changes as 10 percent disabling; and tinnitus as 10 percent disabling.  At a 40 percent combined evaluation, the Veteran's service-connected disabilities do not render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation during this period.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Thus, the schedular criteria have not been satisfied.

From July 29, 2011 to March 26, 2012, the Veteran has a combined evaluation of 80 percent: coronary artery disease, status post coronary artery bypass graft as 60 percent disabling; anxiety disorder not otherwise specified as 50 percent disabling; postoperative meniscectomy of the left knee with degenerative changes as 10 percent disabling; tinnitus as 10 percent disabling; and a noncompensable evaluation for hearing loss.  At a 80 percent combined evaluation, the Veteran's service-connected disabilities do render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Thus, the schedular criteria been satisfied.

Although, from November 13, 2009 to July 28, 2011, the Veteran does not meet the schedular criteria for a TDIU, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a).  The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.  38 C.F.R. § 4.16(b).  The rating board did not refer this case for extraschedular consideration.

In this case, and for the reasons set forth below, the Board concludes that the evidence of record does not indicate that referral is warranted to the Director of the Compensation Service under the provisions of 38 C.F.R. § 4.16(b).  

As previously discussed above, the Veteran did not submit a VA Form 21-8940 as requested by VA.  As the Veteran was informed of the evidence required to substantiate his TDIU claim in October 2015, and he chose not to submit any additional evidence, including the VA Form 21-8940, the Board will proceed based on the evidence of record.

Since his discharge, the Veteran earned his degree in accounting.  His employment history consisted of practicing as an accountant for 20 years, working in career placement, and being self-employed until 2010 as an appraiser performing damage appraisal.  See December 2011 VA Mental Health Note E& M Note, Virtual VA, 2/2/2012, pg. 1 and January 2012 VA psychiatric examination.  He reported that he retired in 2011 from a carpet sales position due to his physical health problems.  See March 2013 VA knee examination and November 2015 VA psychiatric examination.

Multiple lay statements describe that the Veteran stopped working, because his physical condition had resulted in his termination.  He had uncontrollable hand tremors and minimal strength in his arms and legs preventing him from being able to lift any objects of any weight.  His wife said that he could not write legibly, could not perform normal day-to-day tasks, and his loss of muscle and muscle weight made climbing stairs difficulty.  Describing the Veteran's performance with his last employer (carpet sales) which led to his termination, the Veteran's wife stated that the Veteran was conducting a presentation where his hand were trembling, and that he was unable to carry samples up a flight of stairs.  The Veteran said that he was unable to perform his occupational tasks, because he had memory problems, difficulty driving (due to lack of sleep), could not use a computer or write, and had problems moving when he had to appraise damages to buildings or cars.  See December 2011 statements, March 2012 DRO hearing transcript and May 2015 Board hearing transcript.  The Veteran said that his non-service-connected peripheral arterial disease and myotonic dystrophy (hand tremors) caused his problems with moving.  At his May 2015 Board hearing, the Veteran generally indicated that his service-connected disabilities (coronary artery disease, anxiety, left knee disability, hearing loss and tinnitus) prevented him from working.  

At his December 2009 VA examination, the examiner found no current impact from his service-connected left knee disability on his ability to perform his job.  Mild to moderate functional impairment was noted based on the Veteran's subjective reports.  

From November 13, 2009 to July 28, 2011, the Board finds that the evidence of record does not reveal factors outside the norm resulting in unemployability.  During this appeal period, the Veteran has not shown that his current service-connected disabilities (coronary artery disease, left knee disability, and tinnitus) significantly hampered his ability to secure employment.  Notably, according to findings made at his December 2009 VA examination, the Veteran's left knee disability had no impact during this period on his ability to perform his job.  Statements made about his termination from his last employment with a carpet sales company, and the physical limitations associated with that loss of employment, all stemmed from his non-service-connected disabilities (peripheral artery disease and myotonic dystrophy type 2).  The available clinical evidence during this appeal period does not support finding that the Veteran's service-connected disabilities caused a significantly diminished level of functioning.  The Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  To the extent the service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for the disabilities compensate the Veteran for such impairment.  Therefore, as the Veteran has not provided any competent and credible evidence that his service-connected left knee disability, or other service-connected disabilities, prevent him from securing or following any substantially gainful employment, from November 13, 2009 to July 28, 2011, the Board finds that referral for extraschedular consideration is not appropriate, and a TDIU rating is not warranted.  See 38 C.F.R. § 4.16 (b).

In addition, the Board finds that for the period from July 29, 2011 to March 26, 2012, the most probative evidence demonstrates that a TDIU is not warranted.  In particular the Board places weight upon the following: (1) findings at an August 2011 VA audiological examination that the Veteran's hearing loss and tinnitus had no impact on his ordinary conditions of daily life, including his ability to work; (2) reports at an October 2011 VA examination that the Veteran was unable to work predominately due to his generalized muscle weakness and deteriorating handwriting; and that he had no significant cardiac symptoms; (3) conclusions made by the October 2011 VA examiner that the Veteran was less likely capable of performing a physical job due to his advancing non-service-connected generalized weakness and peripheral arterial disease as well as his service-connected left knee disability, which limited his ability to ambulate, climb stairs, and move in general; and that he was less likely capable of performing a sedentary position due to his left knee disability and coronary artery disease; (4) opinion of the March 2013 VA examiner who found that the Veteran's left knee disability caused moderate impairment in performing jobs that require squatting, bending the knee, prolonged standing and excessive force placed on the knees; and (5) findings of the November 2015 examiner who determined that the Veteran's anxiety disorder caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

Ultimately, the lay and clinical evidence show that the Veteran's muscle weakness, tremors, and memory impairment all contribute to the Veteran's difficulties obtaining and maintaining substantially gainful employment.  Notably, the Veteran described his difficulty keeping a job because of his physical limitations.  However, none of these reported symptoms are related to his service-connected disabilities, except for his left knee disability.  Nevertheless, the clinical evidence, as detailed above, does not show that the Veteran's left knee disability is of such a degree that he is unable to perform any occupational work.  With regard to the Veteran's other service-connected disabilities, the Veteran has not expressed how his hearing loss, tinnitus, or coronary artery disease impact his ability to work.  Although the Veteran has asserted that his anxiety disorder has impacted his work performance in the past, the evidence does not show that this disorder contributes in any significant way to his difficulty maintaining employment.  Of particular note are his own statements that it is his physical limitations that cause the most impact on his employability.  Overall, based on the objective findings of the Veteran's level of functional impairment due to his service-connected disabilities, the Veteran might require certain work limitations, but the evidence does not show that solely, by virtue of his service-connected disabilities, that the Veteran is precluded from securing or following substantially gainful employment.  Thus, the Board concludes that from July 29, 2011 to March 26, 2012, a schedular TDIU is not warranted. 
















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ORDER

Entitlement to service connection for myotonic dystrophy type 2, to include as due to herbicide exposure and as secondary to statin use for service-connected coronary artery disease, is denied.

Entitlement to an evaluation in excess of 10 percent for postoperative meniscectomy of the left knee with degenerative changes is denied.

Entitlement to an evaluation in excess of 50 percent for anxiety disorder NOS is denied.  

Entitlement to a TDIU is denied.  




____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs