Citation Nr: 1756087	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  09-47 411	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, status post anterior cruciate ligament repair, right knee.

2.  Entitlement to an initial compensable rating for right knee residual scar.

3.  Entitlement to an increased evaluation for residuals, status post avulsion fracture, distal talus, left ankle, rated noncompensable prior to May 7, 2015 and 10 percent thereafter.

4.  Entitlement to service connection for bilateral hearing loss.

5.  Entitlement to service connection for tinnitus.

6.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

7.  Entitlement to service connection for low back disability.

8.  Entitlement to service connection for hematuria.

9.  Entitlement to service connection for urological problems.

10.  Entitlement to service connection for memory problems.

11.  Entitlement to service connection for depression.

12.  Entitlement to service connection for migraines.

13.  Entitlement to service connection for vision problems.

14.  Entitlement to service connection for gastroenteritis with colitis.

15.  Entitlement to service connection for left hand/wrist carpal tunnel syndrome.

16.  Entitlement to service connection for a left knee disability.

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

18.  Entitlement to nonservice-connected pension.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Mike A. Sobiecki, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Coast Guard from August 1996 to August 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July and September 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  Jurisdiction was subsequently transferred to the RO in Roanoke, Virginia and then to the RO in Baltimore, Maryland.

In a February 2014 decision, the Board remanded the appeal so that the Veteran could be scheduled for a hearing before a Decision Review Officer (DRO hearing).  

In April 2015, the Veteran testified at a DRO hearing; the hearing notes are of record.

In a July 2017 rating decision, the RO awarded an initial 10 percent rating for right hand/wrist carpal tunnel syndrome and an increased 10 percent rating for residuals, status post avulsion fracture, distal talus, left ankle effective May 7, 2015.  As noted in the decision, the award of the 10 percent rating for right hand/wrist carpal tunnel syndrome was considered a full grant of the benefit sought on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).  The claim for an increased rating for the left ankle disability remains on appeal as the benefit awarded was less than the maximum allowed under VA law and regulations and the Veteran did not communicate an intent to limit the appeal.  Id.

The issue of service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran's right knee disability does not limit flexion to 30 degrees or less.  The right knee disability does manifest in painful motion.

2.  The Veteran's right knee residual scar is linear and not painful or unstable.

3.  The Veteran's left ankle disability has not produced moderate limitation of motion, but is manifested by painful motion as first noted on the May 2015 VA examination report.

4.  The Veteran's impaired hearing is not a disability for VA purposes.

5.  The Veteran's tinnitus had its onset during active service and continued therefrom.

6.  The Veteran's PTSD stressor regarding being upon a ship and experiencing anxiety from enclosed places is uncorroborated and the Veteran's lay statements, alone, are insufficient to prove its occurrence.  The Veteran's PTSD stressor regarding experiencing the terrorist attacks of September 11, 2001 in person are uncorroborated and the Veteran's lay statements asserting that this occurred are not credible.

7.  At an April 2015 DRO hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal the issues of entitlement to service connection for a low back strain, hematuria, urological problems, memory problems, depression, migraines, vision problems, gastroenteritis with colitis, and left hand/wrist carpal tunnel syndrome; as well as the claims of entitlement to a TDIU and entitlement to nonservice-connected pension.

CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 10 percent for degenerative joint disease, status post anterior cruciate ligament repair, right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260 (2017).

2.  The criteria for an initial compensable rating for right knee residual scar have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.16, 4.118, Diagnostic Code 7804 (2017).

3.  The criteria for an increased evaluation for residuals, status post avulsion fracture, distal talus, left ankle, rated noncompensable prior to May 7, 2015 and 10 percent thereafter have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017).

4.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).

5.  The criteria for service connection for tinnitus have been met.  38 U.S.C.          §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

6.  The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R.      §§ 3.102, 3.303, 3.304, 4.125(a) (2017).

7.  The criteria for withdrawal of the appeal for service connection for a low back disability are met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

8.  The criteria for withdrawal of the appeal for service connection for hematuria are met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

9.  The criteria for withdrawal of the appeal for service connection for urological problems are met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

10.  The criteria for withdrawal of the appeal for service connection for memory problems are met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

11.  The criteria for withdrawal of the appeal for service connection for depression are met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

12.  The criteria for withdrawal of the appeal for service connection for migraines are met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

13.  The criteria for withdrawal of the appeal for service connection for an eye injury are met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

14.  The criteria for withdrawal of the appeal for service connection for gastroenteritis with colitis are met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

15.  The criteria for withdrawal of the appeal for service connection for left hand/wrist carpal tunnel syndrome are met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

16.  The criteria for withdrawal of the appeal for the issue of entitlement to a TDIU are met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

17.  The criteria for withdrawal of the appeal for entitlement to nonservice-connected pension are met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

I.  Increased Rating Claims

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.  38 U.S.C. § 1155 (2012).  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1 (2017).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  

A.  Right Knee

The Veteran's degenerative joint disease, status post anterior cruciate ligament repair, right knee (right knee disability) is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5260.  Hyphenated DCs are used when a rating under one DC requires the use of an additional DC to identify the specific basis for the evaluation.  38 C.F.R. § 4.27.  The additional code is shown after the hyphen.  Id.  In this instance, DC 5010 relates to arthritis, due to trauma, substantiated by X-ray findings, and DC 5260 relates to limitation of flexion of the knee.

DC 5010 instructs that arthritis due to trauma should be rated as degenerative arthritis under DC 5003.  

When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  A 20 percent rating is warranted for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.  Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion.  Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating disabilities listed under DCs 5013 to 5024, inclusive.  38 C.F.R. § 4.71a.

When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate DCs, then DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a.

When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate DCs, the compensable limitation of motion should be rated under the appropriate DCs for the specific joint or joints involved.  38 C.F.R. § 4.71a.

Disabilities of the knee are rated pursuant to 38 C.F.R. § 4.71a, DCs 5256-5263.  

DC 5256 provides evaluations for ankylosis of the knee.

DC 5257 provides evaluations for recurrent subluxation and lateral instability.  A 10 percent rating will be awarded for slight instability, a 20 percent rating will be awarded for moderate instability, and a 30 percent rating will be awarded for severe instability.  The words "slight," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities; rather than applying a mechanical formula, the Board must evaluate all of the evidence so that its decisions are equitable and just.  See 38 C.F.R. § 4.6.

DC 5258 provides a 20 percent rating for dislocation of semilunar cartilage.

DC 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage.

DCs 5260 and 5261 provide the rating criteria for limitation of knee motion.  38 C.F.R. § 4.71a.  Normal range of motion of the knee is from 0 to 140 degrees.  38 C.F.R. § 4.71a Plate II.  DC 5260 provides that limitation of knee flexion to 60 degrees is rated as noncompensable; limitation of knee flexion to 45 degrees is rated as 10 percent disabling; and limitation of knee flexion to 30 degrees is rated as 20 percent disabling.  Ratings above 20 percent are available for greater limitations of flexion.  DC 5261 provides that limitation of knee extension to 5 degrees is rated as noncompensable; limitation of knee extension to 10 degrees is rated as 10 percent disabling; and limitation of knee extension to 15 degrees is rated as 20 percent disabling.  Ratings above 20 percent are available for greater limitations of extension. 

DC 5262 provides evaluations for impairment of the tibia and fibula.

DC 5263 provides a 10 percent rating for acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing.

The Veteran seeks an initial rating in excess of 10 percent for a right knee disability.  For the reasons that follow, the Board finds that an increased rating is not warranted.

Range of motion testing was performed on VA examinations in January 2008 and May 2015.  In January 2008, extension was shown to be normal and flexion was limited to 125 degrees with pain at the end of the range of motion.  There was no additional limitation of motion on repetitive testing.  In May 2015, extension and flexion were both shown to be normal, to include on repetitive testing.  The objective range of motion test results from these two examinations correspond to a noncompensable rating under DC 5260.  A review of the VA treatment records shows range of motion test results that also correspond to a noncompensable rating.  Based on the objective range of motion test results of record, the Veteran's right knee disability warrants a noncompensable rating under DC 5260.

As DC 5260 is predicated on range of motion measurements, it does not subsume the functional loss factors discussed in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Board must consider whether those factors further limit the right knee's range of motion beyond the objective test results.  Id.

On VA examination in January 2008, the Veteran reported chronic pain, locking, instability, and swelling.  He described these symptoms as constant.  He denied experiencing flares.  Lachman, Drawer, varus, and valgus tests were negative; however, they were limited by pain.  Palpation for tenderness revealed generalized tenderness in the entire right knee.  McMurray test was negative and there was no objective evidence of crepitus.  The Veteran reported that his right knee did not affect his activities of daily living; however, he did report that his knee, along with his nonservice-connected back disability, rendered him unable to sit or stand for long periods of time.

A December 2010 VA treatment record shows that the Veteran's right knee buckled while moving some furniture and he was experiencing chronic right knee pain.  

A January 2012 VA treatment record noted some ligamentous instability.  Range of motion appeared to be normal, but palpating medial to right patella elicited unexpected sharp pain.

A March 2013 VA treatment record showed the Veteran reported pain with prolonged sitting and negotiating stairs.  On examination, there was no joint effusion, there was medial joint line tenderness, range of motion was from 0 to 120 degrees, and collaterals were grossly intact.  

On VA examination in May 2015, the Veteran reported constant dull aching with variations of intermittent sharp pain and morning stiffness and swelling, aggravated by walking or sitting with bent knees for a long period of time.  The Veteran denied flares.  He denied any subjective functional loss or impairment.  On objective testing, there was no evidence of pain with weightbearing, no objective evidence of crepitus.  Pain was noted but it did not result in or cause functional loss.  Muscle strength testing was normal and there was no muscle atrophy.  There was no ankylosis.  There was no subluxation, lateral instability, or recurrent effusion.  The Veteran did report using a brace for knee stability and support.  The examiner stated that it would be mere speculation to opine whether pain, weakness, fatigability, or incoordination cause additional functional loss during flares or on repeated use over time, in terms of further limitation of motion, because the Veteran was not observed under such conditions.  The Board notes that the Veteran does not experience flares, and the examination report otherwise indicates that pain, weakness, fatigability, or incoordination do not cause functional loss.

A July 2015 VA treatment record shows that the Veteran's knee gave out two months prior and he fell and reinjured it.  Subsequent swelling had improved and there was no instability shown on exam.  In September 2015, the Veteran would request a consultation for physical therapy.  He reported that his knee was feeling a little weak.  He underwent physical therapy through VA from September 2015 to February 2016.  The physical therapy reduced pain and improved function; however, at no point during treatment was range of motion shown to be limited to less than 120 degrees.  At the end of physical therapy the Veteran reported that he only experiences knee pain when he bumps it or "does something to it."  His physical therapist encouraged he try returning to regular gym exercise, including use of a treadmill and stationary bike.

A June 2016 VA medical opinion noted that the Veteran had lost his knee brace and did not currently use it.  A November 2016 VA treatment record noted an acute exacerbation of knee pain that resolved with medication.  There was no indication the pain caused further limitation of motion.

Based on all of the evidence of record, the Board cannot find that functional loss factors, to include those listed in §§ 4.40 and 4.45, cause additional limitation of motion of the right knee that would approximate a compensable degree of limitation of flexion.  The Veteran has denied experiencing flares.  Regarding repeated use over time, the Veteran reported prolonged sitting and standing result in functional impairment due to pain; however, there is no evidence that this pain causes further limitation of motion beyond the objective test results.  There is no indication that buckling, instability, swelling, stiffness, weakness, or the knee giving way caused limitation of motion.  The Board notes that pain did limit Lachman, Drawer, varus, and valgus testing on VA examination in January 2008; however, these tests are not predicated on flexion or extension.  During the January 2008 VA examination the Veteran reported that his knee did not affect his activities of daily living.  During the May 2015 VA examination, the Veteran reported that there was no subjective functional loss or impairment relating to the joint; this arguably shows an improvement in the disability.  The evidence shows that the Veteran did subsequently undergo physical therapy; however, the starting point for symptoms and functional impairment was such that his right knee never approached a level of flexion limited to 45 degrees or less, which is the minimum threshold for a compensable limitation of flexion.  Accordingly, there is no doubt to be resolved; the Veteran's right knee disability did not more nearly approximate a compensable degree of limitation of motion under 38 C.F.R. §§ 4.40 and 4.45.

The evidence shows that the Veteran experienced painful motion.  A March 2012 VA treatment record showed that the Veteran reported pain on prolonged sitting and negotiating stairs.  Pain during such activities necessarily occurs while in "motion."  The Veteran's statements regarding such painful motion are corroborated by the January 2008 VA examination report which noted pain at the end of the range of motion.  Resolving all doubt in the Veteran's favor, the Board finds that the right knee expressed painful motion.  38 C.F.R. §§ 3.102, 4.59; see Petitti v. McDonald, 27 Vet. App. 415 (2015) (section 4.59 does not require objective evidence of painful motion).  Based on the presence of painful motion, the minimum compensable rating, a 10 percent rating, is warranted under § 4.59.  This is the rating for the right knee disability throughout the appeal period.  The Board notes that the same rating could be reached via the application of DC 5003, which provides for a 10 percent rating where there is objective evidence of limitation of motion to a noncompensable degree under the appropriate DC, as is the case here.

A higher 20 percent rating is not warranted because the Veteran's right knee has not been limited to 30 degrees of flexion or less, to include with consideration of 38 C.F.R. §§ 4.40 and 4.45, as discussed above.  There is no doubt to be resolved; a higher 20 percent rating is not warranted.

The Board has considered whether staged ratings are warranted; however, the Veteran's disability has not more nearly approximated a rating in excess of 10 percent at any point during the appeal period.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  An exception to the above statement is that the Veteran was awarded a temporary total rating for convalescence following knee surgery for the period from August 30, 2013 to January 1, 2014.  The assignment of this temporary rating is appropriate and will not be disturbed.  The Board notes that the Veteran filed a claim for an extension of the temporary total rating beyond January 1, 2014.  This claim was denied in a May 2014 rating decision.  The Veteran did not appeal this decision or submit new and material evidence within a year of notice of the decision; therefore, it is final.  38 C.F.R. §§ 3.156(b), 20.302, 20.1103.  The extension of the temporary total rating for convalescence is not before the Board.

The Board has considered whether separate ratings are warranted.  Esteban v. Brown, 6 Vet. App. 259 (1994).  The Veteran's service-connected right knee disability has not manifested in ankylosis, dislocation of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum; therefore, separate ratings for those conditions are not warranted.  See 38 C.F.R. § 4.71a, DCs 5256, 5258, 5262, and 5263.  Regarding his September 2013 right knee injury, the Board notes that he twisted his knee playing football in the backyard; this tibia injury is unrelated to his service-connected disability.  The Veteran's right knee disability has not manifested in a compensable degree of limitation of extension; therefore, a separate rating for limitation of extension is not warranted.  See 38 C.F.R. § 4.71a, DC 5261.  The evidence, to include the Veteran's statements, indicates that there is instability of the knee and that the Veteran wears a knee brace, which is also indicative of instability.  The Veteran is competent to report readily observable symptoms; however, he is not competent to attribute them to a specific medical diagnosis such as subluxation or lateral instability.  The medical evidence of record does not show a diagnosis of subluxation or lateral instability, and such diagnoses have not been provided on VA examinations.  The Board finds that the medical findings of no instability or subluxation are more probative in establishing the existence of the specific diagnosis than the lay evidence of record.  Accordingly, there is no diagnosis of subluxation or lateral instability; therefore, a separate rating for that disability is not warranted.  See 38 C.F.R. § 4.71a, DC 5257.  The evidence shows the Veteran did undergo surgical removal of his semilunar cartilage; however, a veteran may not receive separate ratings under DCs 5260 or 5261 and 5259 due to the rules against pyramiding.  38 C.F.R. § 4.14; see VA's Adjudication Manual M21-1, III.iv.4.A.4.i.  

In summary, the Veteran's right knee disability warrants an initial 10 percent rating based on painful motion; an even higher rating is not warranted.  There are no additional expressly or reasonably raised issued presented on the record.

B.  Right Knee Scar

The Veteran seeks an initial compensable rating for right knee residual scar.  For the reasons that follow, the Board finds that a compensable rating is not warranted.

Scars are evaluated pursuant to DCs 7800, 7801, 7802, 7804, and 7805.  38 C.F.R. § 4.118.  Scars or disfigurement of the head, face, or neck are rated pursuant to DC 7800.  

Scars, not of the head, face, or neck that are deep and nonlinear are rated pursuant to DC 7801.  Under DC 7801, a 10 percent rating is warranted for area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.).  Higher ratings are available for greater levels of severity.  

DC 7802 provides a 10 percent rating for scars that are nonlinear, superficial, and not located on the head, face, or neck, that are of an area or areas of 144 square inches or greater.  Note (1) to DC 7802 defines a superficial scar as one not associated with underlying soft tissue damage.  

Scars that are unstable or painful are rated pursuant to DC 7804.  A 10 percent rating is warranted for one or two scars that are unstable or painful.  Note (1) defines an unstable scar as one where there is frequent loss of covering of skin over the scar.  Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC when applicable.

DC 7805 provides that scars should be evaluated pursuant to DCs 7800 through 7804 and adds that any disabling effect(s) not considered in those rating criteria should be evaluated under an appropriate DC.

The January 2008 VA examination report noted the presence of a 9 cm scar on the anterior surface of the knee.  It was non-tender, not adherent, not textured, and not inflamed.  It showed no evidence of keloid formation.  It was slightly hyperpigmented.

The May 2015 VA examination report noted a healed surgical scar along the right medial patella.  It was 11 cm long and 0.5 cm wide.  The scar was linear.  It was not painful or unstable.  The examiner noted that it caused no functional impairment.

Based on all of the evidence of record, the Board finds that the right knee surgical scar does not approximate the criteria for a compensable rating.  DC 7800 is inapplicable because the scar is not anatomically located on the head, face, or neck.  DCs 7801 and 7802 do not provide for a compensable rating because the scar is not nonlinear and does not meet the minimum area coverage requirements of either DC.  DC 7804 does not provide for a compensable rating because the scar is neither painful nor unstable.  The Veteran has not asserted that the scar is symptomatic or that is causes functional impairment.  VA treatment records also do not show such findings.  Where the rating schedule does not provide a zero percent evaluation, one shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.  There is no doubt to be resolved; the Veteran's right knee scar does not meet the criteria for a compensable evaluation.  Accordingly, a noncompensable rating is assigned.  A higher rating is not warranted.  There are no additional expressly or reasonably raised issued presented on the record.

C.  Left Ankle

The Veteran's residuals, status post avulsion fracture, distal talus, left ankle (left ankle disability) is evaluated pursuant to 38 C.F.R. § 4.71a, DC 5271, corresponding to limitation of motion of the ankle.  The Veteran seeks an increased evaluation for residuals, status post avulsion fracture, distal talus, left ankle, rated noncompensable prior to May 7, 2015 and 10 percent thereafter.  

Under DC 5271, moderate limitation of motion is rated 10 percent disabling and marked limitation of motion is rated 20 percent disabling.

Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees.  38 C.F.R. § 4.71a, Plate II.

The words "moderate" and "marked" are not defined in the VA Schedule for Rating Disabilities; rather than applying a mechanical formula, the Board must evaluate all of the evidence so that its decisions are equitable and just.  See 38 C.F.R. § 4.6.

DCs 5270 (ankylosis of the ankle), 5272 (ankylosis of the subastragalar or tarsal joint), 5273 (malunion of the os calcis or astragalus), and 5274 (astragalectomy) also apply to disabilities of the ankle; however, they are not relevant to this appeal.

The Veteran failed to report to a VA examination scheduled in August 2008, without providing good cause.  

The Veteran underwent a VA examination in May 2015.  He reported wearing an ankle brace intermittently.  He reported bilateral constant dull aching with variations of intermittent sharp pain aggravated by walking for long periods of time.  He denied experiencing flares.  He denied experiencing functional loss or impairment of the joint.  On range of motion testing, plantar flexion and dorsiflexion were normal, to include on repetition.  The examiner indicated that there was objective evidence of pain but it did not result in or cause functional loss.  There was no reduction in muscle strength or muscle atrophy.  There was no ankylosis, instability or dislocation, or scars.  The examiner opined that the disability had no impact on occupational functioning.  The examiner stated that it would be mere speculation to opine whether pain, weakness, fatigability, or incoordination cause additional functional loss during flares or on repeated use over time, in terms of further limitation of motion, because the Veteran was not observed under such conditions.  The Board notes that the Veteran does not experience flares, and the examination report otherwise indicates that pain, weakness, fatigability, or incoordination do not cause functional loss.

The Veteran does not undergo VA treatment for this disability.

For the reasons that follow, the Board finds that an increased rating is not warranted.

The Veteran's left ankle has shown no objective limitation of motion.  As DC 5271 is predicated on limitation of motion, it does not subsume the functional loss factors discussed in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca, supra.  The Veteran's left ankle manifests in painful motion, as demonstrated by subjective reports of intermittent sharp pain aggravated by walking for long periods of time.  The evidence, to include the Veteran's statements, does not indicate that this causes limitation of motion.  Accordingly, even with consideration of §§ 4.40 and 4.45, the Veteran's left ankle does not more nearly approximate limitation of motion that would be considered moderate.  

The May 2015 VA examination report shows that the Veteran reported intermittent sharp pain aggravated by walking for long periods of time, and the examiner noted pain on range of motion testing that did not cause functional loss.  The RO has interpreted this report to show painful motion, consistent with the requirements of 38 C.F.R. § 4.59.  See July 2017 rating decision.  Based on § 4.59, therefore, the minimum compensable rating, a 10 percent rating, is warranted.  This rating is in effect from May 7, 2015, the date of the VA examination report.  The evidence, both lay and medical, does not show that the left ankle manifested in painful motion at any prior point during the appeal period.

In summary, a noncompensable rating is warranted prior to May 7, 2015.  A higher rating is not warranted during this period because the left ankle did not approximate moderate limitation of motion and there was no report or evidence of painful motion.  From May 7, 2015 onward, a 10 percent rating is warranted based on painful motion.  A higher rating is not warranted during this period because the left ankle did not approximate marked limitation of motion.  For the aforementioned reasons, higher ratings are not warranted during either period of this staged rating and further staging of the rating is not warranted.  Hart, supra.  There are no additional expressly or reasonably raised issued presented on the record.

II.  Service Connection Claims

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  "To establish a right to compensation for a present disability, a veteran must show: '(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'-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353(Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Service connection may also be granted on a presumptive basis for certain enumerated chronic disabilities if manifested to a degree of 10 percent or more within a year of discharge from active service.  38 C.F.R. §§ 3.307, 3.309(a).  There is no nexus requirement for these disabilities so long as there is an absence of an intercurrent cause.  Walker v. Shinseki, 708 F.3d 1331, 1335-36 (Fed. Cir. 2013).  The Board notes that hypertension is identified as a chronic disease pursuant to § 3.309(a).

38 C.F.R. § 3.303(b) provides an alternative avenue to service connection for chronic diseases.  Where there is a chronic disease shown in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340 (the term "chronic disease" refers to chronic diseases enumerated in 38 C.F.R. § 3.309(a)).  For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  Id.  Continuity of symptomatology is required only where the condition noted during service or in the presumptive period is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  There is no nexus requirement for these disabilities so long as there is an absence of an intercurrent cause.  Walker, 708 F.3d at 1338-39.  

A.  Hearing Loss

The Veteran seeks service connection for bilateral hearing loss.  For the reasons that follow, the Board finds that service connection is not warranted. 

A threshold requirement for service connection is that the Veteran has a current disability.  In the case of impaired hearing, the regulations provide that not all impaired hearing is considered a disability for VA purposes.  38 C.F.R. § 3.385.  Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  Id.

The Veteran underwent a VA examination in June 2016.  Puretone threshold (in decibels) and speech discrimination scores were as follows:


HERTZ
CNC

500
1000
2000
3000
4000
%
Right
20
20
15
15
20
100
Left
25
25
20
15
25
96

Based on the above table, the objective findings on audiometric testing do not meet the criteria of § 3.385.  The Board notes that audiological evaluations contained in the Veteran's service records also do not meet the criteria of § 3.385.  Accordingly, the Veteran's impaired hearing is not considered a disability for VA purposes.  Service connection for bilateral hearing loss is not warranted.

B.  Tinnitus

The Veteran seeks service connection for bilateral hearing loss.  For the reasons that follow, the Board finds that service connection is warranted.

The Veteran's service records are absent of any complaints, treatment, or diagnosis of tinnitus.  The Veteran reports exposure to noise from ships and ship engines during service.  He reports that hearing protection was worn; however, the quality of the devices was not good.

On the original claim for VA benefits, the Veteran wrote that he had experienced tinnitus/ringing ears from October 1997.  See September 2007 VA Form 21-526.  

The Veteran underwent a VA examination in January 2008.  The examination was not for a hearing disability; however, the examination report did state "Regarding the audio system, there are claimed complaints."  There was no further clarification as to what this meant.

A February 2009 VA treatment record shows that the Veteran reported he was exposed to loud noises during active service and that he now experienced some hearing difficulty in his right ear.  He denied experiencing tinnitus.  The same subjective facts were noted in a May 2010 VA treatment record; however, it appears that the text may have simply been copied from the prior treatment record as opposed to the Veteran reporting those facts once more.

A June 2016 VA examination report shows the Veteran reported exposure to various ship noises and engines during service and that he used hearing protection but it was not of good quality.  He reported that post-service noise exposure was limited to mowing his lawn; he did not use hearing protection during this activity.  He reported that he has a bilateral intermittent high-pitched ringing which occurs 2 to 3 times per week and lasts 5 to 10 minutes.  He stated the ringing is bilateral but rotates between his ears.  He reported that the ringing began many years ago.  The examiner diagnosed tinnitus and opined that it was less likely than not related to the Veteran's active service because there was no shift in hearing or reports of tinnitus during service.

Tinnitus is considered a chronic disability and, therefore, the provisions of 38 C.F.R. §§ 3.303(b) and 3.309(a) are applicable.  See Fountain v. McDonald, 27 Vet. App. 258 (2015).  The Veteran's statements indicate that the disease began in service and has continued therefrom.  He is competent to relate such features or symptoms of illness, as well as their continuity, because they are readily observable.  38 C.F.R. § 3.159(a)(2); see Charles v. Principi, 16 Vet. App. 370 (2002).  The Board recognizes that the statements he made during VA treatment in February 2009 contradict his assertions regarding onset during service and continuity therefrom; however, given that he had previously noted ringing of the ears since 1997 and he reported complaints regarding his audio system during a January 2008 VA examination, the Board resolves all doubt in his favor.  The Veteran's statements are considered credible.  The Veteran's statements are at least as probative as the opinion of the June 2016 VA examiner. 

Resolving all reasonable doubt in favor of the Veteran, the Board finds his statements to be sufficient to establish that he experienced tinnitus during service, 38 C.F.R. § 3.307(a)(3), and that there was a continuity of symptomatology after discharge from service, 38 C.F.R. § 3.303(b).  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  There is no evidence of a clearly attributable intercurrent cause.  38 C.F.R. § 3.303(b).  Accordingly, service connection for tinnitus is warranted.

C.  Acquired Psychiatric Disorder

The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD.  For the reasons that follow, the Board finds service connection is not warranted.

Preliminarily, the Board notes that the only acquired psychiatric disorder for which the Veteran has a current diagnosis is PTSD.  Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).

The Veteran has reported that he witnessed the terrorist attack on the Pentagon on September 11, 2001 (also referred to as "9/11").  In a January 2008 VA Form 21-0781, he reported that on the morning of 9/11 he had dropped some paperwork off at the Pentagon.  He reported that just knowing he had just been there and could have died was traumatizing.  He reported that he constantly thinks about that and has related bad dreams.  In a letter dated April 2015, the Veteran reported that as part of his duties as a paralegal, he was to attend tax counsel meetings at the Pentagon twice a week.  On the day of 9/11, he had such a meeting and after its conclusion he had left to go back to U.S. Coast Guard headquarters.  He reported that the tragic event happened 18 minutes after he left the Pentagon.  He reported that the Pentagon offered counseling but he did not take advantage of the service and so he suffered and mourned in his own way.  

The Veteran underwent a VA examination in January 2008.  He reported emotional difficulties following a "9/11 event."  He stated "since the 911 event happened, I have been having problems.  I just left the Pentagon right before it happened about five minutes.  It was just the same spot that I was in."  He also reported that since then he has been having bad dreams and wakes up anxious in the middle of the night.  He denied anxiety symptoms prior to the Pentagon attack.  The examiner diagnosed PTSD and alcohol abuse versus dependence.  The examiner opined that the traumatic event that the Veteran describes -of just leaving the pentagon several minutes prior to the attack of 911- is an atypical type of stressor, but it is at least as likely as not that this did cause PTSD.  In addition he has been abusing alcohol since that time which is as at least as likely as not related to this as well.

The Veteran underwent another VA examination in May 2015; the examination report also provides a diagnosis of PTSD.  During this examination, the Veteran reported that he had just left the Pentagon prior to the attack on 9/11 and he was within view of the Pentagon when it happened.  He reported that he was in shock, fear, was confused, and felt vulnerable.  He reported that he still has flashbacks of the incident and people's sharp cries after the impact and he is constantly reliving the attack and seeing the scene.  He also reported he was assigned lead paralegal to help families that had lost their loved ones in the attack.  

The Veteran also reported that during service between 1996 and 1999 he was on and off ships.  While the ships were at sea he was anxious about being in an enclosed place.  He felt trapped and started being anxious about enclosed places.  He now avoids elevators because he fears there might not be an easy exit if anything happened.  Additionally, he avoids crowded places and movie theaters.  The VA examiner indicated that both stressors were sufficient to meet Criterion A for PTSD in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013) (DSM-5) and the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV).  

Based on the evidence, service connection for PTSD is not warranted.  

The Veteran has reported two separate stressors for his PTSD.  The Board finds that the reported stressors, one of which was only described during the May 2015 VA examination, are uncorroborated by the evidence of record.  Moreover, as neither are based upon combat, fear of hostile military or terrorist activity, being a prisoner-of-war, or personal assault, and because PTSD based on these stressors was not diagnosed during service, the Veteran's lay evidence, alone, cannot establish their occurrences.  38 C.F.R. § 3.304(f)(1)-(5).  Accordingly, service connection for PTSD based on these stressors is not warranted.

With regard to the first stressor, being in enclosed spaces aboard a ship and experiencing anxiety as a result, the Veteran's statement is not credible.  At the May 2015 VA examination, he reported that during service and while the ships were at sea, he felt trapped and started being anxious about enclosed places.  However, at the previous examination in 2808, he denied having experienced anxiety prior to the 9/11 attack on the Pentagon.  The inconsistency amongst these statements impugns the Veteran's credibility as to the occurrence of this stressor.  The Board, therefore, assigns it no probative value.  

With regard to the second stressor, the Veteran has reported that he witnessed the terrorist attack on the Pentagon on September 11, 2001 (also referred to as "9/11").  The Veteran's service personnel records confirm that on September 11, 2001 he was stationed at U.S. Coast Guard headquarters in Washington, D.C.  The service records also show that he provided legal assistance to families affected by the 9/11 attack at the Pentagon.  The service records do not show that he was required to attend regular meetings at the Pentagon as part of his duties or that he visited the Pentagon on September 11, 2001.  His service treatment records do not show that he complained of psychiatric symptoms or sought psychiatric treatment or counseling following the 9/11 attack.

A July 2008 memorandum shows a formal finding was made that the information required to corroborate the in-service stressor was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of NARA records.  The memorandum indicated that the terrorist attacks of 9/11 on the Pentagon are well documented; however, the Veteran was not, by his own admission, present during the incident.  The memorandum characterized the stressor as an "event that almost happened" because he had left before the attack occurred.  

The Board notes that the occurrence of the 9/11 attacks on the Pentagon are not in dispute.  There is not, however, any evidence to corroborate the Veteran's statements that he had been at the Pentagon that day or that he witnessed the attack.  Furthermore, the Veteran's statements in that regard are not credible because his statements describing the stressor are inconsistent and have evolved over time to place him closer in time and proximity to the actual attack.  As noted, in the January 2008 VA Form 21-0781, he indicated that he had been at the Pentagon the morning of the attack and just left prior to the event.  At the 2008 examination, he reported that he had left 5 minutes prior to the attack.  In a letter dated April 2015, he reported that he had left the Pentagon located in Virginia 18 minutes prior to the attack to return to the U.S. Coast Guard headquarters located in Washington, D.C.  During the May 2015 VA examination, he reported that he had just left the building before the attack had occurred, was within view of the building during the attack, and could hear the cries of people upon impact.  

The inconsistency amongst these statements impugns the Veteran's credibility.  The Board, therefore, assigns them no probative value.  The in-service stressors, as described by the Veteran, are found not to have occurred.  

In reaching this determination, the Board acknowledges that the May 2015 VA examiner described the Veteran's stressor as relating to a fear of hostile military or terrorist activity and, therefore, pursuant to § 3.304(f)(3) the stressor may be corroborated by lay evidence alone.  Nonetheless, to reiterate the findings above, the Board finds the Veteran's lay statements to not be credible and assigns them no probative value.  The May 2015 VA examiner diagnosed PTSD based upon the Veteran's alleged in-service stressor that he had just left the Pentagon prior to the 9/11 attack and was still within sight of the building and could hear peoples cries upon impact.  Given the findings above, this diagnosis is based upon a factually inaccurate premise and is, therefore, not competent.  

In summary, the Board finds that the Veteran's in-service stressors did not occur and his diagnosis of PTSD is based upon uncorroborated (and not credible) stressor events.  The criteria of 38 C.F.R. § 3.304(f) have not been met.  The record contains no other current diagnoses of an acquired psychiatric disorder.  Service connection for an acquired psychiatric disorder, to include PTSD, is not warranted.

III.  Withdrawal of Claims

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  The withdrawal may be made by the Veteran or by his or her authorized representative, and it must be in writing or be made on record during a hearing.  38 C.F.R. § 20.204. 

During an April 2015 DRO hearing, the Veteran withdrew all claims on appeal except for those for an increased evaluation and service connection for PTSD, bilateral hearing loss, tinnitus, and a left knee disability.  In an April 2015 written statement signed by the Veteran and received by VA prior to the issuance of an appellate decision in the appeal, the Veteran knowingly and intentionally withdrew his appellate claims on the issues noted herein.  Accordingly, the claims of entitlement to service connection for a low back strain, hematuria, urological problems, memory problems, depression, migraines, vision problems, gastroenteritis with colitis, and left hand/wrist carpal tunnel syndrome were all withdrawn.  The claims of entitlement to a TDIU and entitlement to nonservice-connected pension were also withdrawn.  As the Veteran has withdrawn these appeals, there remain no allegations of error of fact or law for appellate consideration.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.204.  Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed.


ORDER

An initial rating in excess of 10 percent for degenerative joint disease, status post anterior cruciate ligament repair, right knee is denied.

An initial compensable rating for right knee residual scar is denied.

An increased evaluation for residuals, status post avulsion fracture, distal talus, left ankle, rated noncompensable prior to May 7, 2015 and 10 percent thereafter, is denied.

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is granted.

Service connection for an acquired psychiatric disorder, to include PTSD, is denied.

The appeal for the issue of service connection for a low back disability is dismissed.

The appeal for the issue of service connection for hematuria is dismissed.

The appeal for the issue of service connection for urological problems is dismissed.

The appeal for the issue of service connection for memory problems is dismissed.

The appeal for the issue of service connection for depression is dismissed.

The appeal for the issue of service connection for migraines is dismissed.

The appeal for the issue of service connection for an eye injury is dismissed.

The appeal for the issue of service connection for gastroenteritis with colitis is dismissed.

The appeal for the issue of service connection for left hand/wrist carpal tunnel syndrome is dismissed.

The appeal for the issue of entitlement to a TDIU is dismissed.

The appeal for the issue of entitlement to nonservice-connected pension is dismissed.


REMAND

The Veteran seeks service connection for a left knee disability, to include as secondary to his service-connected right knee disability.  He underwent a VA examination in May 2015, and the examiner diagnosed a left knee strain.  No etiological opinion was provided by the examiner.  An etiological opinion was provided a year later in June 2016.  The VA examiner opined that the left knee strain was less likely than not proximately due to or the result of his right knee disability.  The examiner reasoned that prior to the September 2013 fracture of the right knee tibial plateau, an injury which was entirely unrelated to his service-connected disability, the Veteran appeared quite active and there was no evidence of a left knee problem.

The Board finds the June 2016 VA medical opinion inadequate for several reasons.  First, the examiner's opinion did not consider whether the left knee disability may have been aggravated by the right knee disability, as required by 38 C.F.R. § 3.310.  Second, the examiner's opinion is factually inaccurate in that there is evidence of record indicating left knee problems prior to the September 2013 injury.  See, e.g., STR (1/4/2007) (Veteran complained of bilateral knee pain and instability).  And third, given the existence of in-service complaints related to the left knee, there is a possibility that his current left knee disability may be directly related to service and, therefore, an opinion is required to address this theory of direct causation.  Accordingly, remand is required for a new VA examination.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain any outstanding VA treatment records.

2.  Schedule the Veteran for a VA examination to determine the nature and etiology of his left knee disability.  The entire claims file, to include a copy of this REMAND, must be reviewed in conjunction with the examination.

The examiner is asked to provide a diagnosis for the Veteran's current left knee problems.  If a particular disability is ruled out, or if the Veteran no longer has a knee strain as shown in the May 2015 VA examination report, then an explanation should be provided.  

For each diagnosed disability, the examiner is asked to answer the following questions:

A) Is it at least as likely as not (a 50 percent or greater probability) the disability was incurred in, or is otherwise related to, the Veteran's active service?

B)  Is it at least as likely as not that the disability was proximately caused or aggravated by his service-connected right knee disability?

In answering this question, the examiner should recognize that two opinions are required: one for proximate causation and a second for aggravation.  The term "aggravation" means a permanent worsening of a disability beyond its natural progression.  If aggravation is found, then, to the extent possible, the examiner should attempt to establish a baseline level of severity for the left knee disability prior to aggravation by the right knee disability.

A complete rationale must be provided for all opinions expressed.  The rationale should consider the pertinent evidence of record, to include the Veteran's lay statements.

3.  Finally, readjudicate the appeal.  If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.  

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

This claim must be afforded expeditious treatment.  The law requires that all claims 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.




______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs