Citation Nr: 1757786 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 11-13 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for depression prior to March 4, 2016, and in excess of 70 percent thereafter. 2. Entitlement to a disability rating in excess of 10 percent for status post right knee arthroscopy with chondromalacia and painful motion. 3. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease (DJD) of the lumbar spine. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from April 1975 until June 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2010 and March 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In January 2010, the RO increased the rating for depression from 10 percent to 30 percent and denied an increased rating for DJD of the lumbar spine. Evaluation of an increased rating for the right knee was deferred. In March 2010, an increased rating for the right knee was denied. In May 2011, the Veteran requested a hearing before a Veterans Law Judge at the Board in Washington DC. Such hearing was scheduled in July 2013, but the Veteran did not attend. In a March 2016 letter, the Veteran provided an Informal Hearing Presentation in place of hearing testimony. The Board deems the Veteran's request for a hearing withdrawn. See 38 C.F.R. § 20.704 (2017). In a March 2014 decision, the Board, in pertinent part, increased the rating for depression to 50 percent and denied an increased rating for DJD of the lumbar spine. That decision was appealed to the United States Court of Appeals for Veterans Claims (Court) to the extent that the Board did not grant a still higher rating for depression and denied any increase in rating for DJD of the lumbar spine. In June 2015, the Court granted a Joint Motion for Remand (JMR) from the Veteran's representative and the VA Secretary. The issues of entitlement to increased ratings for depression and DJD of the lumbar spine were returned to the Board for further adjudication. In April 2016 and April 2017, the Board remanded the claims for further development. The issue of entitlement to a disability rating in excess of 10 percent for DJD of the lumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to March 4, 2016, the Veteran's depression was manifested by moderate symptomatology causing occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas or total occupational and social impairment were not shown. 2. On and after March 4, 2016, the Veteran's depression has not resulted in total occupational and social impairment. 3. Throughout the appeal period, the Veteran's right knee disability has been manifested by at worst flexion to 100 degrees with normal extension accompanied by pain; ankylosis, recurrent subluxation or lateral instability, dislocated cartilage with frequent episodes of 'locking', pain and effusion into the joint and impairment of the tibia and fibula were not shown. CONCLUSIONS OF LAW 1. Prior to March 4, 2016, the criteria for a disability rating in excess of 50 percent for depression were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. On and after March 4, 2016, the criteria for a disability rating in excess of 70 percent for depression were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a disability rating in excess of 10 percent for status post right knee arthroscopy with chondromalacia and painful motion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5099-5003 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant and his representative have 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 Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule for 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. 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 may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; 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. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that the relevant time period for evidence that must be addressed in the adjudication of the appeal begins August 31, 2008, one year prior to the date of receipt of the increased rating claims. See 38 C.F.R. §3.400(o)(2) (2017). I. Depression Pursuant to the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessive rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. 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). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). While not determinative, a GAF score is probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). GAF scores ranging between 61 to 70 reflect some mild symptoms (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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Turning to the evidence, in a July 2009 VA treatment record, it was noted the Veteran was well groomed, although his motor activity was restless, his concentration scattered and his attention distractible. Memory and eye contact were normal. His attitude was cooperative and his affect appropriate, although his mood was anxious. Speech flow showed a flight of ideas, although his thought content was appropriate to mood and circumstances. No preoccupations or hallucinations were noted. Judgment was noted to be normal. The Veteran's primary complaints were insomnia, nightmares, agitation, exaggerated startle response, mood swings and aggression. The Veteran stated he felt like his life was getting out of control and he needed help. In August 2009, the Veteran sought treatment again for depression. His motor activity, attention, concentration, memory, eye contact and speech flow were noted to be normal. His mood was depressed. It was noted the Veteran had nightmares and recurrent fears about some sudden cardiac crisis or death. A GAF score of 50 was assigned. An assessment noted the Veteran was not suicidal or homicidal and was not acutely psychotic or manic. In September 2009, the Veteran underwent a VA examination. The Veteran's psychomotor activity and speech were unremarkable. His attitude toward the examiner was cooperative and attentive and his affect was appropriate. His mood was euthymic and his attention intact. He was oriented to time, place and person. His thought process was noted to be unremarkable. The Veteran noted trouble falling asleep, worries and anxiety. No hallucinations were noted and the Veteran was not noted to have inappropriate behavior, to include any that was obsessive or ritualistic. Panic attacks were noted to occur once a week, when the Veteran would try to fall asleep. Homicidal and suicidal thoughts were denied. Impulse control was noted to be good without episodes of violence. His remote memory was normal. Recent and immediate memory was noted to be mildly impaired. He reported that he forgets what he is to say in speeches, has problems finding the right words sometimes and loses his train of thought. It was noted the Veteran was a project officer and worked full time. A GAF score of 55 was assigned. January 2010 VA treatment records indicate the Veteran was admitted to the hospital with "worsening depression." It was noted depressive symptoms had intensified over the previous two weeks and he was admitted for observation. His GAF score upon admission was 35, and upon discharge was 55. Veteran complained of lethargy, sleep problems, racing thoughts and problems focusing. He reported a history of depression "off and on", with recent increase. The Veteran indicated he could not focus on work, lacked an appetite and felt "tired all the time." A January 2010 discharge summary indicated that the Veteran was admitted on referral from his therapist where he presented with despair and at risk of suicide. The Veteran indicated mood symptoms that had fluctuated over time with anxiety as a complicating factor. It was noted that at the time of discharge, the Veteran denied suicidal/homicidal ideation. His insight and judgment were good and his condition stable. Medication adjustment was discussed. A January 2010 outpatient follow-up note reported that the Veteran had a normal appearance and was appropriately groomed. The Veteran reported feeling and sleeping better and denied hallucinations and suicidal or homicidal ideation. Examination revealed normal speech and euthymic affect. The Veteran was noted to be oriented to time, place and person. His memory was intact and his attention fair. The examiner assigned a GAF of 60. In a March 2010 rating decision, the RO increased the Veteran's disability rating from 10 percent to 30 percent. In a March 2010 VA treatment record, it was noted the Veteran had been last seen in January 2010 following a brief 6-A stay for acute suicidality. He was noted to be appropriately groomed with no psychomotor agitation or retardation. His speech was fluent. Hallucinations and suicidal or homicidal ideation were denied. The Veteran was noted to be oriented to all spheres. His memory was intact and his attention good. A GAF score of 60 was assigned. In an August 2010 notice of disagreement, the Veteran requested a 70 percent disability rating due to his hospitalization in January 2010. He noted that during that stay, his GAF score was 35. He did not agree with the GAF scores of 60 assigned in his VA treatment records. He indicated that he might have been functioning at "a 60 level" at those moments, but in between, he was not. In a statement received in December 2010, the Veteran indicated he did not like socializing and would rather just be left alone. During 2008 and 2009, he indicated getting to a point where he thought he was losing control of himself. He stated being in a constant state of panic, being anxious about everything, "literally bouncing off the walls." He indicated he was scared and although he never considered himself to be suicidal, the subject had entered his "racing thoughts." He indicated that a combination of medications that would work for him had not yet been found. He reported nightmares, lack of sleep, forgetfulness and mood swings that affected his day-to-day activities and his work. In a February 2011 VA treatment record, the Veteran was noted to be oriented to person, time and place. His mood was dysphoric. He indicated difficulty with both initial and middle insomnia and described anxious ruminative thinking that he could not turn off at night. He indicated sleeping only 2 to 3 hours per night and feeling tired for much of the day. It was noted he had sleep apnea and was using a CPAP machine. Hallucinations were denied. The Veteran described himself as a perfectionist with high standards and that he liked things regimented and ordered. Suicidal or homicidal ideation was denied and memory was noted to be normal. The Veteran described fears about his mortality. He did not report or describe manic or hypomanic symptoms. Medication was only partially helpful; it was indicated the Veteran was not currently in therapy. In a December 2011 Preventative Medicine Screening Note, a depression screening was performed. The Veteran indicated he had little interest or pleasure in doing things more than half the days. He felt depressed or hopeless nearly every day and had trouble falling or staying asleep nearly every day. He noted feeling tired and having little energy. He indicated that nearly every day he had trouble concentrating on things, such as reading the newspaper or watching TV. He denied thoughts that he would be better off dead or hurting himself. He indicated these symptoms made it somewhat difficult for him to do work, take care of things at home or get along with other people. Moderately severe depression was assessed. In an October 2012 Outpatient Progress Note, the Veteran indicated still having insomnia. Treatment records between 2013 and 2014 indicate the Veteran was continuing to take a several medications to alleviate his depression and psychiatric symptomatology. In a March 2014 decision, the Board determined that the evidence of record supported a rating increase to 50 percent due to manifestations of depressed mood, anxiety, difficulty sleeping, occasional panic attacks, mild memory loss, diminished interest/pleasure in activities, fatigue/loss of energy, irritability, and intermittent suicidal ideation resulting in reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. Following a June 2015 JMR, the Board remanded the claim in April 2016 to associate VA treatment records with the claims file as directed in the JMR and for the RO to readjudicate the claim. In a July 2016 VA treatment record, the Veteran's depression was noted to be stable. In a September 2016 depression screening, the Veteran reported little interest or pleasure in doing things nearly every day and feeling down, depressed or hopeless nearly every day. It was noted he was a low risk for suicide. In March 2017, pursuant to a claim for a TDIU, the Veteran underwent a VA examination regarding the current severity of his psychiatric condition. The examiner diagnosed unspecified depressive disorder and generalized anxiety disorder. Symptoms of unspecified depressive disorder were noted to include sad or depressed mood most of the time; social withdrawal; sleep disturbance (insomnia); fatigue, low energy and problems with concentration. Symptoms of generalized anxiety disorder were noted to include excessive worry that is generalized to many aspects of the person's life. The symptoms were said to overlap and interact. As to the Veteran's level of occupational and social impairment with regards to all mental diagnoses, the examiner identified occupational and social impairment with reduced reliability and productivity. Upon examination, the Veteran was noted to be appropriately groomed. He demonstrated no psychomotor agitation or retardation and was cooperative. His speech was normal. His mood was noted to be depressed more since having lost his contracting job. He denied hallucinations and was noted to be oriented to all spheres. He denied suicidal and homicidal ideation. His memory was intact and attention was good. He related having nightmares every night and waking up in a cold sweat feeling panic. He reported having panic attacks more than once a week. His impulse control was noted to be good with no recent episodes of violence. Symptoms that applied to the Veteran's diagnoses included depressed mood, anxiety, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood and difficulty in adapting to stressful circumstances, including work or a work like setting. Upon review, the Board finds that a disability rating in excess of 50 percent for PTSD is not warranted prior to March 4, 2016 as the Veteran's symptoms - which included depressed mood, anxiety, difficulty sleeping, occasional panic attacks, mild memory loss, diminished interest/pleasure in activities, fatigue/loss of energy, irritability, and intermittent suicidal ideation - were not of such a severity or frequency as to result in occupational and social impairment with deficiencies in most areas or total occupational and social impairment. From 2006 to March 2016, the Veteran was working full time as a government contractor. The Veteran did not exhibit symptoms of such severity, frequency, or duration so as to meet the criteria for a 70 or 100 percent rating, nor is there any evidence or medical opinion that the Veteran was impaired to that extent. His judgment, thinking, and impulse control were within normal limits. He did not demonstrate obsessive behaviors or neglect his appearance or hygiene. At each appointment, he was noted to be oriented to all spheres. While he complained of periods of worsened depression, the evidence does not reflect that he experienced near-continuous panic or depression which affected his ability to function independently, appropriately, and effectively. GAF scores assigned during the period prior to March 4, 2016 reflect moderate symptoms. The Board acknowledges that the Veteran's symptoms appear to have increased in severity in January 2010 when he was hospitalized for observation due to acute suicidality and was assigned a GAF score of 35 at that time. There do not appear to be repeat episodes of increasing symptomatology such as this and this episode was short in duration. Given the severity, frequency, and duration of symptoms a higher disability rating is not warranted. A 100 percent disability rating is not warranted at any point during the appeal period because total occupational and social impairment is not shown. This includes the period beginning March 4, 2016, during which time a 70 percent evaluation was assigned. During that period, symptoms consisted of depressed mood, anxiety, social withdrawal, sleep disturbance (insomnia), low energy and problems with concentration, worry, panic attacks, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, flattened affect, disturbances of motivation and mood and difficulty in adapting to stressful circumstances, including work or a work like setting. At each examination, the Veteran had appropriate thought content and no evidence of a thought disorder. He was alert and oriented and no hallucinations, delusions, or inappropriate behavior were noted. He was groomed appropriately and his memory was intact. To the extent the Veteran's memory was impaired, it was described as mild, as opposed to memory loss for names of close relatives, own occupation, or own name, which is a sign of total occupational and social impairment. Likewise, grossly inappropriate behavior as contemplated in the higher 100 percent rating was not reported or found at any examination. He denied and did not present any signs of psychotic thought content/process problems. Given the above, the Board finds that the evidence of record clearly reflects occupational and social impairment that is less than total. As such, a higher 100 percent rating is not warranted at any time for service-connected depression. In reaching the above conclusions, the Board has considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. II. Right Knee The Veteran's service-connected right knee condition has been rated as 10 percent disability under Diagnostic Code (DC) 5099-5003 since March 9, 1999. The Veteran filed a claim for an increased rating in August 2009. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and "99." DC 5099 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. §§ 4.20, 4.27, 4.71a (2017). DC 5003 encompasses the criteria for degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis must be established by x-ray evidence. Evaluations for degenerative arthritis shall be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. If, however, evaluation on this basis results in a noncompensable evaluation, the Veteran shall be awarded a 10 percent rating for each major joint or group of minor joints affected by limitation of motion, to be combined but not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent rating, and the same with occasional incapacitating exacerbations warrants a 20 percent evaluation. 38 C.F.R. § 4.71a. Here, the only joint affected is the Veteran's right knee joint. As such, he is not entitled to a rating in excess of 10 percent pursuant to DC 5003. There are multiple diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected knee disorders under 38 C.F.R. § 4.71a. These include the following: DC 5256 (for ankylosis), DC 5257 (for recurrent subluxation or lateral instability), DC 5258 and DC 5259 (for dislocated or removed cartilage), DC 5260 (for limitation of flexion), DC 5261 (for limitation of extension) and DC 5262 (for rating impairment of the tibia and fibula). DC 5257 provides that slight recurrent subluxation or lateral instability warrants a 10 percent rating, moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a. DC 5258 provides that dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent rating. DC 5259 provides that symptomatic removal of semilunar cartilage warrants a 10 percent rating. DC 5260 provides that flexion of the leg limited to 60 degrees warrants a noncompensable rating; flexion limited to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; and flexion limited to 15 degrees warrants a 30 percent rating. DC 5261 provides that extension of the leg limited to 5 degrees warrants a noncompensable rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; extension limited to 45 degrees warrants a 50 percent rating. There is no evidence of ankylosis of the knee or impairment of the tibia or fibula in the record, as such the Board has not set forth the rating criteria under those diagnostic codes. For reference, normal of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. VA's General Counsel has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under DCs 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63, 604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). 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 exertion, 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 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). 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). Turning to the evidence, in March 2010, the Veteran underwent a VA examination which addressed disability in both knees. The Veteran indicated instability, pain, stiffness, weakness, incoordination, and decreased speed of joint motion in his right knee. He denied episodes of dislocation or subluxation as well as locking episodes or effusions. He indicated experiencing flare-ups when going up stairs, lifting things, during prolonged walking or standing and when walking on uneven surfaces. The Veteran indicated worrying about hyperextending the knee. He was able to stand for one hour and walk 1 to 3 miles, although he reported the knee would start to hurt after a quarter mile. Subpatellar tenderness and grinding was noted in both knees. Flexion was to 100 degrees on the right and extension was normal. There was objective evidence of pain with active motion, but no additional limitations after three repetitions of range of motion. After three repetitions of range of motion, right knee flexion was to 125 degrees. There was no evidence of joint ankylosis or instability on examination. X-rays showed a grossly unremarkable examination bilaterally with normal appearing bones, preserved joint space and no effusion. It was indicated the Veteran was working from home because his physical condition did not allow him to commute 150 miles one way. The Veteran noted that as part of his job responsibilities, he was required to attend trade shows; however, due to his knee he was only able to participate for half days. In a December 2010 statement in support of claim, the Veteran indicated his knees hurt and swelled any time he engaged in walking or physically-active work activities. In February 2011, the Veteran reported that his right knee was worse with increased pain, crepitus, weakness, stiffness and a giving out/pivoting motion leading to instability. He indicated moderate flare-ups 3 to 4 times a week lasting hours that were precipitated by pivoting movement and climbing or descending stairs. He was able to stand up to one hour and walk 1 to 3 miles. Upon examination, tenderness was noted at the joint line. Crepitation was noted, but grinding, instability, patellar abnormality and meniscus abnormality were not noted. Right knee flexion was to 140 degrees. Extension was normal. There was objective evidence of pain following repetitive motion, but no additional limitations after repetition. In his notice of disagreement received in January 2013, the Veteran requested a 20 percent rating due to instability, giving way, pain, stiffness and weakness, incoordination, decreased speed of joint motion, swelling and tenderness. He indicated flare-ups three to four times per week, lasting for hours. A treatment record dated in January 2014 indicated knee pain of 7 out of 10. Following a Board remand in March 2014, the Veteran underwent a VA examination in July 2016 that examined range of motion and symptomatology of both knees. The Veteran stated he had good days and bad days and that his knee condition worsened with physical activity. He stated he had not sought treatment recently for the condition. He denied flare-ups and he did not report having any functional loss or impairment of his right knee. Range of motion was noted to be normal in both knees. The Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss or range of motion loss thereafter. The examiner could not state without resorting to speculation whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. Such is understandable as the Veteran reported not experiencing flare-ups. As the examination was specifically noted to have been performed after repetitive use over time the findings are probative as to the conditions level of impairment. No muscle atrophy was noted and ankylosis was not present. Joint stability testing was performed and there was no evidence of joint instability or recurrent subluxation. No tibial or fibular impairment was noted. In April 2017, the Board remanded the claim for an additional examination in light of the holding by the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016) that requires VA examinations for musculoskeletal disability to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. In May 2017, the Veteran underwent a VA examination. He stated he had pain and when he walked on his knee it would give out. He indicated that when doing very heavy work on his 20 acre farm, his knee would give out when jumping off his tractor. The Veteran did not report flare-ups. Range of motion was noted to be normal without pain. There was no evidence of pain with weight bearing. Joint stability testing did not reveal anterior, posterior, medial or lateral instability. Tibial and/or fibular impairment was not identified. It was noted the Veteran did not now have nor had he ever had a meniscus (semilunar cartilage) condition. In this case, the Board finds the VA examinations are adequate for rating purposes and that a higher disability rating is not warranted based on limitation of motion even when considering the functional effects of pain to include during flare-ups and after repetitive use. At each examination, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include range of motion testing and joint stability testing. When looking at the examination results, which demonstrate limitation of flexion to at worst 100 degrees, along with VA treatment records, the requirements for a 20 percent rating or still higher have not been met or approximated. To demonstrate entitlement to a 20 percent rating or a separate rating, the evidence would need to show slight recurrent subluxation or lateral instability under DC 5257 (separate rating), dislocated cartilage with frequent episodes of "locking", pain, and effusion into the joint under DC 5258 (separate rating), flexion limited to 30 degrees under DC 5260 (higher rating), limitation of extension to 10 degrees under DC 5261 (separate rating), or impairment of the tibia or fibula with slight knee or ankle disability under DC 5262 (separate rating). Here, the record does not contain evidence of such severe symptoms. As the Veteran is status post right knee arthroscopy, the Board has considered DC 5259 which allows for a 10 percent rating when a veteran is symptomatic after removal of semilunar cartilage. The Veteran has reported symptoms of stiffness, swelling, and pain. However, in this case, the Board cannot assign a separate rating under DC 5259 as that would constitute pyramiding. See 38 C.F.R. § 4.14 (2017). In this case, the right knee limitation of motion is not compensable in degree and the rating was elevated to a compensable rating because of the pain, stiffness, and swelling. Hence, it would be pyramiding to assign another compensable rating based on these symptoms. In addition, the July 2016 and May 2017 examiners specifically indicated there were no current meniscal conditions. The Board finds that the 10 percent rating under DC 5003 is appropriate as it compensates for limitation of motion which is noncompensable under the appropriate diagnostic codes. Overall, the evidence does not suggest that the findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record, to include the Veteran's lay statements. The Board acknowledges that the Veteran has reported experiencing instability of his knees; however, the only joint stability testing of record was at the VA examinations and showed no instability. While the Veteran may experience a feeling that his knees may give way or are unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence of these conditions. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity. Hence, the evidence is against a separate rating under Diagnostic Code 5257. 38 C.F.R. § 4.71a. As to preponderance of the evidence is against the claim for an increased rating, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. ORDER A disability rating in excess of 50 percent for depression prior to March 4, 2016 is denied. A disability rating in excess of 70 percent for depression on and after March 4, 2016 is denied. A disability rating in excess of 10 percent for status post right knee arthroscopy with chondromalacia and painful motion is denied. REMAND The Board regrets additional delay, but finds that further development is necessary to ensure compliance with prior remand directives and to satisfy the duty to assist the Veteran regarding the rating for his DJD of the lumbar spine. See Stegall v. West, 11 Vet. App. 268 (1998). In May 2014, the Board denied the claim for entitlement to a disability rating in excess of 10 percent for DJD of the lumbar spine, in part, because testing upon VA examination showed normal range of motion. In the June 2015 JMR, it was noted that medical records that were constructively before the Board showed flexion to 30 degrees in March 2010; flexion to 30 degrees in May 2010; flexion to 25 degrees in December 2010; and flexion to 35 degrees in January 2014 suggesting the Veteran experienced significant flare-ups of his condition. The JMR questioned whether the VA examinations provided in September 2009 and February 2011 sufficiently addressed the degree of functional loss that would occur during flare-ups. The 2009 VA examiner indicated the Veteran had moderate daily flare-ups lasting hours precipitated by activity, lifting, sitting, and that he experienced functional impairment during flare-ups which "interrupts or stops activities." The examiner did not attempt to quantify or otherwise describe the degree of functional loss that might occur during the described flare-ups. The 2011 VA examiner stated the Veteran had severe lumbar spine flare-ups 3-4 times per week lasting hours and precipitated by "physical activity of any sort." The examiner indicated he could not state the extent of additional limitation of motion or other functional impairment during flare-ups; no explanation as to why was provided. In April 2016, the Board remanded the claim seeking another VA examination. The examiner was asked to note, in degrees, any decrease of range of motion which may occur during flare-up events. If the examiner could not identify the likely additional loss of motion, he or she was to express why to the highest possible degree of specificity. In an April 2016 VA treatment record, the Veteran sought treatment for lumbar pain. Flexion was to 40 degrees. In July 2016, the Veteran underwent another VA examination. He reported his back condition was getting worse, but denied flare-ups. Flexion was normal. The examiner indicated she could only speculate as whether pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over a period of time. In April 2017, the Board remanded the claim again. The Board noted that although the VA examinations of record in 2009, 2011 and 2016 show normal flexion of the lumbar spine, VA treatment records at various points during the appeal period show very limited forward flexion, as noted by the parties to the JMR. The Board noted that no examiner had yet addressed the treatment records indicating limitation of motion in stark contrast to the measurements found upon VA examination. On remand, the Board sought an opinion addressing the severity of the disability throughout the appeal period in light of the past examination findings of normal range of motion in comparison to the Veteran's lay statements that he experienced flare-ups of back pain and the various treatment records that demonstrated treatment for exacerbated limited motion. The Board asked the examiner to provide a retrospective medical opinion on the Veteran's range of motion of the spine throughout the pendency of the appeal given notations of limited motion in the VA treatment records as noted in the JMR. See Chotta v. Peake, 22 Vet. Ap. 80 (2009) (wherein the Court determined that VA may need to obtain a "retrospective medical opinion" to determine the severity of a disability decades prior). The examiner was to consider the evidence of record and the Veteran's history and comment on the historical severity of the Veteran's range of motion in both active and passive motion and in weight-bearing and nonweight-bearing, in degrees if possible. If any opinion could not be provided, the examiner was to clearly explain why, including discussion regarding whether the prior VA examinations are accurate representations of the Veteran's disability level. In May 2017, the Veteran underwent another VA examination. Forward flexion was normal and the Veteran denied flare-ups. The examiner stated he could not determine whether pain, weakness, fatigability or incoordination could significantly limit functional ability during flare-ups, or when the back was used over a period of time because he had not evaluated the Veteran during a flare-up or when using the joint repeatedly. As such, any opinion would be speculative. Upon review of the treatment records and per the Veteran's statements, the examiner surmised that the Veteran had been using narcotics since 2001. Given the Veteran's indication at the VA examination that he was doing "real hard work" on 20 acres of land, the examiner indicated it was very likely the Veteran has "an addiction problem with the narcotics having been using them for so many years and complaining of pain is a very common issue when seeking narcotics." The Board finds that although the 2017 VA examiner reviewed the record and provided an opinion as to the Veteran's complaints of exacerbated pain, the record does not contain the retrospective opinion regarding limitation of motion sought by the Board in April 2017 in response to the June 2015 JMR. Stegall, 11 Vet. App. 268. As such, the Board will remand for an addendum opinion from a physician. Updated VA treatment records should also be associated with the claims file. 38 U.S.C. § 5103A(c) (2012). Accordingly, the case is REMANDED for the following action: 1. Associate all updated VA treatment records with the electronic claims file. 2. Provide access to the Veteran's electronic claims file to an appropriate physician to provide a retrospective medical opinion on the Veteran's range of motion of the spine throughout the pendency of the appeal (beginning August 31, 2008) given notations of significantly limited motion in VA treatment records as noted in the June 2015 JMR and the April 2017 Board remand (March 2010 - flexion to 30 degrees, December 2010 - flexion to 30 degrees, January 2014 - flexion to 35 degrees, and April 2016 - flexion to 40 degrees). With consideration of the evidence of record and the Veteran's history, comment on the historical severity of the Veteran's range of motion in both active and passive motion and in weight-bearing and nonweight-bearing, in degrees if possible. If any opinion cannot be provided, the specialist should clearly explain why this is so, including discussing whether the prior VA examinations are accurate representations of the Veteran's disability level. The Board recognizes the April 2017 VA examiner's indication that the Veteran may have complained of increased pain due to an addiction to narcotics; however, this is not clear to the Board from the treatment records and the opinion did not specifically provide the details sought in the April 2017 remand. Such opinion should include consideration of whether there was loss of range of motion on repetitive use over time or during flare-ups that could be considered functional loss in addition to that shown by range of motion testing performed at the VA examinations of record in September 2009, February 2011, July 2016 and May 2017. If the medical professional is unable to offer an opinion as to the nature and extent of any additional disability during flare-ups during the appeal period, that fact must be so stated and an explanation should be provided as to why. Merely stating that the condition was not observed during a flare-up or after repetitive use is not sufficient without explaining why this would be the only way to provide an estimate as to range of motion. 3. After completing the requested actions, and any additional actions deemed warranted to ensure compliance with the REMAND directives, the AOJ should readjudicate the claim. If the benefit sought is not granted to the fullest extent, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs