Citation Nr: 1752947 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-02 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, and if so, whether service connection is warranted. 2. Entitlement to a compensable initial disability rating for service-connected hypertension prior to August 29, 2016, and in excess of 10 percent thereafter. 3. Entitlement to an increased disability rating in excess of 10 percent for service-connected left knee medial meniscus degeneration. 4. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to service-connected left knee medial meniscus degeneration. 5. Entitlement to service connection for bilateral lower extremity radiculopathy, to include as secondary to service-connected left knee medial meniscus degeneration. ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service with the United States Army from June 1999 to April 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office. The issues of entitlement to service connection for bilateral lower extremity peripheral neuropathy, bilateral lower extremity radiculopathy, and an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An August 2001 rating decision denied the claim of entitlement to service connection for a nervous condition; the Veteran did not appeal or submit new and material evidence within the requisite period. 2. Evidence received since the August 2001 rating decision is new, relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a nervous condition, and raises the reasonable possibility of substantiating that claim. 3. Prior to August 29, 2016, the Veteran's service-connected hypertension did not have diastolic pressure predominantly greater than 100 and systolic pressure predominantly greater than 160. 4. Beginning August 29, 2016, the Veteran's service-connected hypertension manifested by the need for continuous medication for control, and had diastolic pressure predominantly less than 110 and systolic pressure predominantly less than 200. 5. Throughout the period on appeal, the Veteran's degenerative joint disease of the left knee was manifested by painful motion, stiffness, and flexion to at least 70 degrees, and extension to zero degrees. CONCLUSIONS OF LAW 1. The August 2001 rating decision that denied the Veteran's claim for entitlement to service connection for a nervous condition is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001); currently, 38 U.S.C.A. § 7105(c) (2016); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016). 2. Evidence submitted to reopen the claim of entitlement to service connection for a mental health disability, to include a nervous condition and an adjustment disorder is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2016). 3. Prior to August 29, 2016, the criteria for a compensable disability rating for service-connected hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7101 (2016). 4. Beginning August 29, 2016, the criteria for a disability rating in excess of 10 percent for service-connected hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7101. 5. The criteria for entitlement to an increased disability rating in excess of 10 percent for service-connected degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5260 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran has been provided notice of the evidence he needs to support his claims and of the elements needed to prove entitlement to service connection and to show a higher disability rating. The evidence does not show, and the Veteran has not asserted, that there are deficiencies in the Board's duty to notify and assist. New and Material Evidence The AOJ denied the Veteran's claim of entitlement to service connection for a nervous condition in an August 2001 rating decision, finding that there was no evidence of a current disability or of a nexus between the Veteran's active duty service and a current disability. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of notification of the decision. Therefore, the decision is final. See 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001); currently, 38 U.S.C.A. § 7105(c) (2016); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016). The evidence received since the August 2001 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2016). For example, there is evidence of VA treatment for a mental health disability. This new evidence addresses the reason for the previous denial; that is, a current disability, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2016); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2016); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2016). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2016); see also 38 C.F.R. §§ 4.45, 4.59 (2016). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Hypertension The Veteran's service-connected hypertension is rated under Diagnostic Code 7101, which provides for a 10 percent disability rating with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or, there is a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. The criteria for the next higher rating, 20 percent, are diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more. The criterion for the next higher rating, 40 percent, are diastolic pressure predominantly 120 or more; and the criterion for a 60 percent rating, is diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104. By way of history, the Veteran's was granted entitlement to service connection for hypertension in an October 2012 rating decision and was assigned a noncompensable disability rating. This rating increased to a 10 percent disability rating as of August 29, 2016. Each period will be discussed separately. i. Prior to August 29, 2016 The Veteran has had continuous symptoms of high blood pressure throughout the period on appeal, but his blood pressure levels did not rise to a compensable rating prior to August 29, 2016. Much of the Veteran's treatment was through VA, and his treatment records revealed blood pressure readings of 130/82 and 135/75 in 2011; 128/83, 112/90, 130/86, 133/90, and 130/80 in 2012; 130/80, 120/79, 136/78, 126/80 in 2013; 125/75, 116/76, 133/92 in 2014, and 117/72, and 133/83 in 2015. The Veteran was prescribed hypertension medication and based on his treatment records his blood pressure remained stable. During this time he did not assert, and the evidence does not show, that he had history of diastolic pressure predominantly 100 or more or a history of systolic pressure predominantly 160 or more. Indeed, it appears that none of the blood pressure readings reached that level. Overall, his hypertension was controlled during this period. Based on the foregoing, the Board finds that the criteria for a compensable disability rating during this period for the Veteran's hypertension are not met. The Veteran has required continuous medication to control his blood pressure, but the evidence of record does not indicate diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. In fact, there is minimal evidence that his diastolic blood pressure rose to 100 during this period on appeal, and his systolic pressure did not rise to 160. The treatment notes are consistent with relatively normal blood pressure readings corresponding with a noncompensable disability rating prior to August 29, 2016. ii. Beginning August 29, 2016 The Veteran's treatment records show blood pressure readings of 140/82 and 139/91 in 2016. His treatment records also indicate he was prescribed various hypertension medications for control. The Veteran underwent VA examination in connection with his claim in August 2016. At the time the Veteran reported that he was consistently taking hypertension medication. The VA examiner noted that the Veteran had a normal rhythm in the heart, with normal auscultation and normal sinus rhythm. Blood pressure readings were 147/99, 151/97, and 149/100 with an average reading of 149/98. Based on the foregoing, the Board finds that the criteria for a disability rating in excess of 10 percent for the Veteran's hypertension are not met. The Veteran has required continuous medication to control his blood pressure, but the evidence of record does not indicate diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. Treatment records and the Veteran's statements are not in significant conflict with the examination findings. There is no other potentially applicable Diagnostic Code upon which to rate this disability. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However as the preponderance of the evidence is against assignment of a higher disability rating, that doctrine is not for application. Left knee The Veteran's left knee disability is rated under Diagnostic Code 5260. Diagnostic Code 5260 addresses limitation of flexion of the leg and provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating where flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Related to Diagnostic Code 5260 is Diagnostic Code 5261 which addresses limitation of extension. Extension limited to 10 degrees warrants a 10 percent disability rating, extension limited to 15 degrees warrants a 20 percent disability rating, extension limited to 20 degrees warrants a 30 percent disability rating, extension limited to 30 degrees warrants a 40 percent disability rating, and extension limited to 45 degrees warrants a 50 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Codes 5010, 5055, 5256, 5258, 5259, 5262, and 5263, ratings are assigned for traumatic arthritis, prosthetic replacement of a knee joint, ankylosis of the knee, dislocated semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, and genu recurvatum, respectively. 38 C.F.R. § 4.71a. As noted below, the evidence of record does not reflect the presence of any of these disabilities. As such, ratings under these criteria would not be appropriate in this case. Other diagnostic codes which may apply to the knees include Diagnostic Code 5257, which addresses recurrent subluxation or lateral instability of the knee. Slight impairment warrants a 10 percent disability rating, moderate impairment warrants a 20 percent disability rating, and severe impairment warrants a 30 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Normal ranges of motion of the knee are to zero degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. By way of history, the Veteran was granted entitlement to service connection for the left knee disability in August 2001 and was assigned a noncompensable disability rating until April 2012, and he has been in receipt of a 10 percent disability rating since that time and throughout the duration of the appeal. At all times during the appeal period, the Veteran has asserted that he is entitled to a higher disability rating. The Veteran injured his knee during service, and since that time he has had ongoing knee pain but his treatment has been mainly conservative. In December 2011 he reported that he was taking only over-the-counter Tylenol for his pain symptoms. In April 2012 he reported that his knee pain waxed and waned, and that he was using steroid injections for his pain. In August 2012 the Veteran first underwent VA examination in connection with his claim. At the time he was diagnosed with left knee medial meniscal degeneration. The Veteran asserted that his pain was an "eight" on a pain scale of one to ten with ten being the worst, and that he experienced flare-ups. He reported that his pain was worse with walking, and with cold and rainy weather. His left knee flexion was to 100 degrees and his extension was to zero degrees. There was no change in range of motion on repetition but he had functional loss demonstrated by pain, weakness, and tenderness. During the physical examination testing the Veteran had tenderness in the knee and some reduced strength, but his stability was normal. While a previous meniscal tear was noted, the examiner indicated that frequent episodes of joint locking, pain, and effusion were all not present. Two months later the Veteran followed up with his VA treatment provider and noted that his knee pain was constant, but that he did not want more aggressive treatment beyond medication, braces, and a cane. He continued conservative treatment to include medication management and carried the left knee meniscal degeneration diagnosis. In August 2016 the Veteran again underwent VA examination in connection with his claim, and at the time he was diagnosed with left knee medial meniscal degeneration. He reported having intermittent knee pain that turned acute when he was walking; specifically he reported that his knee pain was a six on a pain scale of one to ten when at rest and that it increased to a ten out of ten when walking. He reported that he was using acetaminophen and a muscle rub for his pain symptoms. The Veteran asserted that he was unable to bend, kneel, or move fast when he had pain flare-ups. During the range of motion testing the Veteran had flexion to 70 degrees and extension to zero degrees, and there was pain but no evidence of functional loss. He had no evidence of pain with weight bearing, no tenderness, and no crepitus during the testing. He had full strength in the knees with no evidence of ankylosis or instability. The examiner reported that the Veteran did not have and had not had a meniscus (semilunar cartilage) condition. The Veteran reported using a cane and knee brace for his symptoms. Upon review, the Board finds that increased ratings are not warranted at any point during the period on appeal. With respect to limitation of flexion, the Veteran's current 10 percent disability rating is based on painful motion. At no point during the period on appeal does the evidence reflect that his flexion approached compensable levels, let alone the 30 degrees required for a higher disability rating. Accordingly, a disability rating in excess of 10 percent for limitation of flexion is not warranted at any point during the period on appeal. With respect to left knee extension, the Veteran's extension testing has consistently been normal or zero degrees. Accordingly, a compensable disability rating for limitation of extension is not warranted at any point during the period on appeal. The Board recognizes the Veteran's report at the most recent examination that during flare-ups he cannot bend his knee. This statement is found to be lacking credibility. If the Veteran's knee was so affected during flare-ups that he had no motion in it, the Board would expect that this fact would be reported to his treating clinicians. To not be able to move a joint is a very serious condition that likely would not go unreported, especially in light of the Veteran's reporting of less significant symptoms. With respect to left knee instability, the Veteran has had stability testing in both VA examinations with no evidence of any instability. Even though the Veteran reports using a cane and knee brace, he has not reported that his knee is unstable with those tools. Additionally, as noted, the record also does not show that the Veteran has traumatic arthritis, a prosthetic replacement, ankylosis, dislocated semilunar cartilage with frequent locking and effusion into the joint, or nonunion or malunion of either tibia or fibula. Accordingly, Diagnostic Codes 5010, 5055, 5256, 5258, 5259, and 5262 are not for application. 38 C.F.R. § 4.71a. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath, 1 Vet. App. 589. The Board finds there are no other symptoms which should be addressed by a separately-assigned disability rating. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against assignment of a higher disability rating, this doctrine is not for application. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. 49. Other Considerations The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (CONTINUED ON NEXT PAGE) ORDER New and material evidence has been submitted to reopen the claim of entitlement to service connection for an adjustment disorder, and to that extent this issue is granted. Entitlement to a compensable initial disability rating for service-connected hypertension prior to August 29, 2016, and in excess of 10 percent thereafter is denied. Entitlement to an increased disability rating in excess of 10 percent for service-connected left knee medial meniscus degeneration is denied. REMAND Regrettably, remand is necessary for the issues of entitlement to service connection for bilateral lower extremity peripheral neuropathy, bilateral lower extremity radiculopathy, and an acquired psychiatric disorder. The Board notes that the Veteran has claimed entitlement to service connection for bilateral lower extremity peripheral neuropathy. VA interpreted this claim as one for secondary service connection to the Veteran's service-connected left knee disability as stated in the August 2012 duty to notify and assist. In September 2012 a VA examiner provided a negative nexus opinion for secondary service connection, specifically indicating that it was less likely as not that the Veteran's bilateral lower extremity peripheral neuropathy was secondary to the service-connected left knee retropatellar pain syndrome. However, no opinion was provided as to whether the Veteran's bilateral lower extremity peripheral neuropathy was directly related to active duty service. The Veteran's April 2012 claim cited provisions for both direct and secondary service connection. It is also noteworthy that the Veteran indicated during his September 2012 VA examination that he did not know the difference between radiculopathy and peripheral neuropathy, but that he had leg cramps and pains. The Board notes that especially given that the Veteran is proceeding pro se, he should be given the benefit of the doubt and an opinion should be rendered as to whether his bilateral lower extremity peripheral neuropathy is directly related to active duty service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Therefore, on remand the AOJ should solicit an opinion from a VA examiner to determine whether the Veteran's bilateral lower extremity peripheral neuropathy is directly related to active duty service. As it pertains to the Veteran's bilateral lower extremity radiculopathy, the Board notes that the Veteran underwent VA examination in connection with his claim in September 2012. At the time no etiology opinion was rendered because the VA examiner determined that the Veteran did not meet the criteria for a diagnosis radiculopathy of the bilateral lower extremities. Nonetheless, the Board notes that the VA examiner did not provide any rationale to support this finding, and did not identify any tests that may have been used to make this determination. In addition, 5 years have passed since that examination. Therefore, on remand the VA examiner should determine whether the Veteran has a current diagnosis of radiculopathy of the lower extremities, and if so whether it is related to his active duty service or to another service-connected disability. Barr, 21 Vet. App. at 311. In September 2015, opinions were obtained regarding the acquired psychiatric disorder claim. However, the examiner was not asked to comment on aggravation of a psychiatric disorder by the service-connected disorder. The Board finds such an opinion is necessary in this case in light of VA treatment records noted by the examiner which indicate that the Veteran's hypertension and knee disability are stressors that may be contributing to the adjustment disorder. Further, as the Veteran receives continuous treatment through VA, the Board finds that the AOJ should obtain and associate with the file VA treatment records dated from September 2016 to present. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record relevant VA treatment records for the Veteran dated from September 2016 to present. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran should be so notified in writing. 2. After the development above has been completed, the Veteran should be afforded a VA neurological examination to determine all current bilateral lower extremity neurological disorders and their etiology. The Veteran's claims file should be made available to the examiner. Any medically indicated tests should be accomplished. After a review of the evidence, to include the Veteran's service treatment records, VA treatment records and examination reports, and with consideration of the Veteran's lay statements regarding his symptoms and their onset, the examiner should address the following: (a) List all current neurological disorders of the lower extremities. If neuropathy or radiculopathy are not diagnosed, the examiner should explain why such a diagnosis is not appropriate in this case. (b) For each diagnosed disorder, offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder began in service, was caused by service, or is otherwise related to service. (c) For any diagnosed disorder that is not related to service, offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder was (i) caused by or (ii) aggravated by service-connected left knee disability. A rationale is requested for all opinions offered. 3. After the development requested in the first instruction is completed, the Veteran should be afforded a VA mental health examination to determine all current mental health disorders and their etiology. The Veteran's claims file should be made available to the examiner. Any medically indicated tests should be accomplished. After a review of the evidence, to include the Veteran's service treatment records, VA treatment records and examination reports, and with consideration of the Veteran's lay statements regarding his symptoms and their onset, the examiner should address the following: (a) List all current mental health disorders. If adjustment disorder is not diagnosed, the examiner should explain why such a diagnosis is not appropriate in this case. (b) For each diagnosed disorder, offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder began in service, was caused by service, or is otherwise related to service. (c) For any diagnosed disorder that is not related to service, offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder was (i) caused by or (ii) aggravated by service-connected left knee disability or hypertension. Please comment on previous clinician comments that physical deterioration (high blood pressure / knee injury) was a stressor in the Veteran's life, as well as the mental health findings during service. A rationale is requested for all opinions offered. 4. Thereafter, re-adjudicate these claims. If the benefits sought on appeal remain denied, issue the Veteran a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs