Citation Nr: 1800365 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 17-51 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a higher initial rating for other specific trauma and stressor-related disorder (psychiatric disability), currently evaluated as 30 percent disabling from January 8, 2009. 2. Entitlement to a higher initial rating for degenerative joint disease of the right knee (right knee disability), currently evaluated as 10 percent disabling from January 8, 2009. 3. Entitlement to a higher initial rating for residuals of a right tibia fracture, currently evaluated as 10 percent disabling from January 8, 2009. 4. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Michael James Kelley, Attorney ATTORNEY FOR THE BOARD D. Drucker, Counsel INTRODUCTION The Veteran had active military service from September 1967 to January 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for psychiatric disability, assigned an initial 30 percent rating from April 28, 2016, right knee disability, assigned a noncompensable rating from January 8, 2009 and a 10 percent rating from March 8, 2014, and residuals of a right tibia fracture, assigned a noncompensable rating from January 8, 2009 and a 10 percent rating from April 28, 2016. A September 2017 rating decision effectuated the 30 percent rating for psychiatric disability, and 10 percent ratings for right knee and tibia disabilities, from January 8, 2009. In October 2017, the Veteran submitted a new, formal claim for a TDIU, due to, among other disabilities, his service-connected psychiatric disability. See 10/17/17 VA 21-8940. The Board finds that TDIU is now part and parcel of the increased rating issue. See Rice v. Shinseki, 22 Vet. App. 447, 53-54 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to a rating higher than 30 percent for psychiatric disability from April 29, 2016 and a TDIU are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Since the initial grant of service connection through April 28, 2016, the weight of the medical and other evidence of record is against a finding that the Veteran's service-connected psychiatric disability has been manifested by more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks since the initial grant of service connection; occupational and social impairment with reduced reliability and productivity has not been demonstrated through April 28, 2016. 2. Since the initial grant of service connection, the probative medical and other evidence of record reflects complaints of flare-ups of right knee pain that cause knee stiffness, tenderness, swelling, and limited motion, and affected the Veteran's ability to walk, stand, run, kneel, and squat, without a finding of flexion limited to 45 degrees, extension limited to 10 degrees, or instability or subluxation of the right knee. 3. From January 8, 2009 to April 27, 2017, the Veteran's residuals of a right tibia fracture more nearly approximated moderate limitation of ankle of motion; since April 28, 2016, the residuals more nearly approximate marked limitation of ankle motion; malunion with moderate knee or ankle disability has not been demonstrated at any time. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 30 percent for psychiatric disability have not been met from January 8, 2009 through April 28, 2016. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9440 (2017). 2. The criteria for an initial rating higher than 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260 (2017). 3. The criteria for an initial rating higher than 10 percent for residuals of a right tibia fracture have not been met from January 8, 2009 to April 27, 2016. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5262-5271 (2017). 4. The criteria for a 20 percent rating, but not higher, for residuals of a right tibia fracture are met from April 28, 2016. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5262-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). This appeal arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has obtained all available records, including service treatment records and VA and non-VA medical records. The Veteran underwent VA examinations in January 2009, March 2014, and April 2016, and the examination reports are of record. To the extent that psychiatric disability worsened since the April 2015 examination that is addressed in the remand below. As such, the Board will proceed to the merits. II. Facts and Analysis Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). An unlisted disability will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the United States Court of Appeals for Veterans Claims (Court) noted that where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Where there is a question as to which of two evaluations is to 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 (2017). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran's statements describing the symptoms of his service-connected psychiatric and right knee and tibia disabilities are deemed competent. However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. A. Psychiatric Disability Rating Criteria The General Rating Formula for Mental Disorders, including Diagnostic Code 9440, that evaluates a chronic adjustment disorder, at 38 C.F.R. § 4.130, provides the ratings for psychiatric disabilities. A 30 percent rating is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9440. A 50 percent rating is warranted if the disability is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating contemplates 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 ability 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. Effective August 4, 2014, VA promulgated an interim final rule regarding the use of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5) with regard to all applications for benefits relating to mental disorders. 70 Fed. Reg. 45,093 (Aug. 4, 2014). Specifically, this rulemaking was to update 38 C.F.R. Parts 3 and 4, including 38 C.F.R. § 4.125, to conform to the DSM-V because the DSM-IV had been rendered outdated upon the publication of the DSM-V in May 2013. Id. at 45,094. The rulemaking included an applicability date of August 4, 2014, providing that: [t]he provisions of this interim final rule shall apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after the effective date of this interim final rule. The Secretary does not intend for the provisions of this interim final rule to apply to claims that have been certified for appeal to the Board of Veterans' Appeals or are pending before the Board of Veterans' Appeals, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit. So, the DSM-5 would apply as this application for benefits was pending at the RO on August 4, 2014 and was not certified to the Board until October 2017. However, since much of the relevant evidence in this case was obtained during the time period that the DSM-IV was in effect, the Board will still consider this information as relevant to this appeal. Furthermore, there is no indication that the Veteran's diagnosis would be different under the DSM-V. According to DSM-IV, Global Assessment of Functioning (GAF) is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." The GAF score must be considered in light of the actual symptoms of the Veteran's disorder, that provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2017). Under DSM-IV, a GAF score of 41 to 50 is commensurate with 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). A GAF score of 51 to 60 indicates moderate symptoms (e.g., a 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). A GAF score of 61 to 70 indicates an assessment of some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning. While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Rather, GAF scores are but one factor to be considered in conjunction with all the other evidence of record. When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102 (2017); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels). Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Indeed, "VA must engage in a holistic analysis" that assess the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Facts In December 2007, VA hospitalized the Veteran for treatment of alcohol dependence, cocaine abuse, and a substance induced mood disorder, and his GAF score at admission was 45, commensurate with serious impairment. See 10/23/17 CAPRI (Boston VA Medical Center (VAMC)), page 485-86; see also 1/10/08 VAMC Report of Hospitalization. He completed a Substance Abuse Residential Rehabilitation Treatment Program and was discharged at the end of January 2008, when a GAF score of 65 was assigned, commensurate with mild impairment. Id. at 449; see also 10/13/09 Correspondence. A January 2009 VA posttraumatic stress disorder (PTSD) examination report indicates that the Veteran was married to his second wife for nearly 40 years and said it was a good marriage but described significant marital discord over the years. The Veteran had a good relationship with his surviving siblings, sons, grandchildren, and three close friends. He belonged to Alcoholics Anonymous and a church, was friendly with neighbors, and had no problem with authority figures. He complained of using drugs and alcohol, was impatient, and had depression, anxiety, and nightmares. The Veteran worked for 20 years as the captain of a fishing boat, working 65 hours per week, until he retired in 2008. On examination, the Veteran was cooperative, pleasant, and compliant. He denied visual and auditory hallucinations. He was oriented. The Veteran described his mood as, "a pretty easygoing guy and easy to get along with." His affect was euthymic and he denied suicidal and homicidal ideations. He had a history of alcohol dependency and last had a drink and used drugs in approximately January 2008. The Veteran denied sleep difficulty and did not have nightmares (that the examiner commented contradicted subjective complaints). The Veteran denied irritability or tearfulness and symptoms of mania or panic attacks. The Veteran's typical day started with making coffee and walking around the block, followed by working in the yard or on his car. Later he would go to the waterfront and talk with his fisherman friends and often have coffee with them. He had no problems with sitting, but did have some problems with walking due to stiffness. The Veteran helped with the housework and had no problems driving or shopping. His cooking was restricted to barbequing. He enjoyed golfing, but was restricted to puzzles at the time of this examination. Concentration and task persistence were unimpaired. As to occupational functioning, the examiner indicated that the Veteran's psychiatric symptoms had no negative impact on his ability to obtain and maintain physical or sedentary employment and caused minimal interference with social functioning. A GAF score of 60 was assigned, commensurate with moderate impairment. In his October 2009 notice of disagreement, (see 10/13/09 NOD, page 3), the Veteran stated, "I made my living as a commercial fisherman for over 50 years, starting at 16 years old during summer vacations, then as a full time crew member. As the years went by I became first mate, then for the last 25 years as captain. During this time, on the waterfront, you never saw Asian people, then you started seeing a couple, then a few more, then before you knew it the waterfront and fish houses were inundated with Asians. Well, I began having nightmares again, flashbacks, I couldn't talk to them I couldn't even look at them, it made me feel, guilty, ashamed, sometimes I use[d] to think maybe I killed their fathers or brothers. It got so bad, I drank more and I started using drugs again. I stopped working and going down [to] the waterfront, I just can't deal with it. I began treatment shortly after that total breakdown, and I am doing better, with counseling and medications." The Veteran underwent another VA examination in March 2014. The examiner indicated that the Veteran's mental health condition did not include symptoms severe enough to interfere with occupational and social functioning or to require continuous medication. The Veteran described his marriage as very good since he stopped drinking, had good relationships with his sons, and was pretty close to his surviving siblings. He had 10 close friends and lived in Florida four months of the year where he looked for sand dollars and watched sunsets. After service discharge, the Veteran reported working for 40 years as a commercial fisherman and stopped working about 10 years earlier due to leg swelling. The Veteran's education reflected 9 years of school prior to service and that, after service, he completed his general education degree. On examination, the Veteran was appropriately groomed and dressed. His speech, thought processes, thought content, judgment, intelligence, and insight, were all appropriate. The Veteran denied suicidal and homicidal ideation. He had intrusive memories every few months, nightmares once or twice a year, few flashbacks, and occasional irritability and hypervigilance. On April 28, 2016, the Veteran underwent VA examination for his service-connected psychiatric disorder. The examiner indicated that the psychiatric disorder would cause occupational and social impairment due to mild or transient symptoms that would decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress. There were no significant changes since the Veteran's May 2014 VA examination; although the examiner noted that the Veteran's private physician prescribed medication for the Veteran's psychiatric disability. The Veteran had nightmares and intrusive thoughts once or twice a month. The examiner noted that the Veteran had a long and consistent career, maintained a long marriage and friendships, and participated in social and recreational activities. On examination, the Veteran was appropriately groomed, fully oriented, pleasant, and cooperative. The examiner noted the active symptoms of depressed mood, anxiety, and chronic sleep impairment. His affect, thought processes and speech were appropriate. Attention, concentration, and memory were intact. The Veteran's insight and judgment were good. There was no evidence of psychosis and the Veteran denied suicidal and homicidal ideation. Analysis A veteran may only qualify for a given disability rating for a mental disorder by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 112. The Board finds that the competent medical and lay evidence from the January 2009, March 2014, and April 28, 2016 VA examination reports reflect symptoms more nearly approximated by the current 30 percent evaluation. Such symptoms include sleep disturbance, depressed mood, and anxiety. In this regard, the record shows that he has been able to maintain effective social and occupational relationships. He has succeeded in maintaining relationships with his wife, sons, other relatives, friends and his church; and examiners have found the disability to be in the mild to moderate range with findings of mild disability predominating, other than the one report of serious impairment in December 2007. In sum, the weight of the probative medical evidence demonstrates that the Veteran does not have symptoms that more nearly approximate to those needed for a 50 percent rating from January 8, 2009 through April 28, 2016. In this regard, although he was retired, he had a few friends, and some recreational and leisure activities. He did not, however, demonstrate symptoms such as a flattened affect; circumstantial, circumlocutory or stereotyped speech; or panic attacks more than once a week. Memory impairment, impaired judgment or impaired abstract thinking was not reported by the January 2009, March 2014, and April 2016 VA examiners. While there was evidence of difficulty with his social relationships, as indicated with his marital relationship, he told the 2014 examiner it was very good since he stopped drinking. The Board finds that such are more nearly approximate by a finding of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks - consistent with the currently assigned initial 30 percent evaluation that he was awarded. Thus, the Board concludes that the weight of the lay and medical evidence of record is against an initial rating higher than 30 percent for psychiatric disability from January 8, 2009 through April 28, 2016. The matter of entitlement to a rating higher than 30 percent for psychiatric disability since April 29, 2016 is addressed in the Remand section below. B. Right Knee and Tibia Disabilities For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet App 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. VA's policy is to treat actually painful, unstable, or malaligned joints as warranting at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation applies to any service-connected joint disability, not just arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (concluding that § 4.59 was potentially applicable to a claim for a compensable evaluation for a bilateral foot disability because the record before the Board contained "competing evidence" as to whether the veteran's foot was painful on motion);see also Pettiti v. Macdonald, 27 Vet. App. 415, 427 (2015) (finding that observations from a lay person who witnesses a veteran's painful motion satisfies the requirement of objective and independent verification of a veteran's painful motion). The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell, 25 Vet. App. at 32, 33, 43. Diagnostic Code 5003, that evaluates degenerative arthritis established by X-ray findings, will be rated based on the degree of limitation of motion under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. A 20 percent evaluation may be warranted with x-ray involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. Id. Facts A January 2009 VA orthopedic examination shows some decreased motion, but good strength, in the left ankle joint. The Veteran did not describe right ankle or knee pain. He had a very obviously shorter left leg with limp and appropriate posture change to compensate. The Veteran reported increasing discomfort and progressive pain with prolonged standing, although he did not use any assistive devices. He was not presently employed, but his activities of daily living were unaffected. The Veteran could walk or stand for short periods. The examiner indicated that, based on examination, the Veteran would be capable of very mild physical activity involving short periods of standing, but was capable of sedentary employment. A June 2009 VA examiner reported that the Veteran walked from the waiting room to the examining room with a good gait, good posture, no pelvic tilt, and no limp. The Veteran transferred from the chair to the examining table without any difficulty. His activities of daily living were not affected and range of motion was noted in terms of walking. The report also reflects no flare ups. In March 2014, the Veteran underwent VA examination of his lower extremities. He reported that his right knee was "pretty good". He had flare-ups that limited activities to walking around the house and used a cane and/or sit in a recliner. It was noted that this would last for about 3 days before subsiding. On examination, range of motion of the Veteran's right knee was flexion to 130 degrees, with full extension, and without objective evidence of pain. Ranges of motion were unchanged following repetitive motion testing. The examiner reported functional loss after repetitive testing as less movement than normal in the right knee. Muscle strength was 5 out of 5 (essentially normal) in the right knee. There was no instability on testing of the right knee. The Veteran's gait was normal and the examiner stated that the Veteran did not use an assistive device. The report reflects no meniscal conditions or surgical procedures for a meniscal condition. The Veteran was retired from his prior job as a fishing boat captain. When he was younger, his lower extremity disability was not a problem but, currently, if he stood for more than 4 to 5 hours in a day his left lower leg and knee would ache and he would get intermittent "Charlie horses" in the right thigh. He could not sit for more than a few hours without getting up and moving about or his legs cramped. In April 2016, the Veteran underwent VA examination of his bilateral knee disabilities. He reported flare-ups of knee pain due to walking, prolonged standing, or prolonged sitting, resulting in functional loss that he described as an inability to walk long distances, run, kneel, or squat. On examination, range of motion of the Veteran's right knee was flexion limited to 100 degrees, with full extension. There was pain with weight-bearing, as well as tenderness and crepitus. Following repetitive motion exercises, there was a further loss of 10 degrees of flexion in the right knee. The further decrease with repetitive motion in the knee was due to pain, fatigue, weakness, and lack of endurance. The examiner was unable to opine as to the nature of the Veteran's functional loss during a flare-up because he was not in the midst of a flare-up at the time of examination and it would be speculative to guess as to any further decrease functioning at those times. There was evidence of pain on weight bearing along with crepitus. Muscle strength testing showed decreased strength in the right knee - 3 out of 5 in the right knee. There was no evidence of muscle atrophy and no ankylosis in any tested joint. There was no evidence of recurrent subluxation and stability testing was normal in the right knee, with slight lateral instability in the left knee. The Veteran regularly used a cane. The examiner concluded that bilateral knee problems would impact the Veteran's ability to perform work requiring prolonged sitting, standing, walking, heavy lifting/carrying, repetitive bending, squatting, and kneeling. Also in April 2016, the Veteran underwent VA examination of his ankles. The examiner noted a diagnosis of residual of fractured tibia and fibula with calcaneal spur of the right ankle. The Veteran reported progressive problems with his bilateral knees and ankles, with the left knee and ankle worse than the right one. He experienced flare-ups with walking and had functional loss due to an inability to walk long distances, endure prolonged standing, or use stairs. On examination, range of motion of the Veteran's right ankle was dorsiflexion limited to 15 degrees and plantar flexion limited to 25 degrees, with pain on weight bearing, tenderness, and crepitus. After repetitive motion, there was a further 5 degrees of loss in each arc of motion in the ankle, with dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 20 degrees. The further loss of motion was attributed to pain, fatigue, weakness, and lack of endurance. The examination findings were consistent with the Veteran's reported functional loss during flare-ups but, as he was not in the midst of a flare-up, the examiner could not definitively determine the degree of further lost motion. Muscle strength testing showed decreased strength in the ankle - 3 out of 5 in the right. There was no evidence of muscle atrophy, or ankle instability, and no ankylosis in any tested joint. The examiner concluded that the bilateral ankle disabilities would affect occupational functioning in that they would limit the Veteran's ability to do work requiring prolonged standing/walking, heavy lifting/carrying, and climbing stairs/ladders. Analysis 1. Right Knee Rating Criteria The Veteran's right knee disability is rated under Diagnostic Code 5003-5260. Hyphenated diagnostic codes may be used when a rating is determined on the basis of a residual condition. 38 C.F.R. § 4.27 (2017). Therefore, Diagnostic Code 5003-5260 indicates right knee arthritis (Diagnostic Code 5003) is rated under the diagnostic code for evaluation of knee flexion of the knee (Diagnostic Code 5260). Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, limitation of knee flexion to 60 degrees is evaluated as noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5260. If flexion of the knee is limited to 45 degrees, a 10 percent rating is assigned. Id. If flexion of the knee is limited to 30 degrees, a 20 percent rating is in order. Id. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, limitation of knee extension to 5 degrees is evaluated as noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5261. If extension of the knee is limited to 10 degrees, a 10 percent rating is assigned. Id. If extension of the knee is limited to 15 degrees, a 20 percent rating is in order. Id. In a precedent opinion by the VA General Counsel, it was held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04. The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable. Id. In a separate precedent opinion, the VA General Counsel held that separate compensable ratings may also be assigned in cases where the service-connected disability includes both arthritis and instability, provided, of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97. In this regard, under Diagnostic Code 5257, impairment of the knee, manifested by recurrent subluxation or lateral instability, will be rated 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). The knee is considered a major joint. 38 C.F.R. § 4.45(f) (2017). Normal range of motion of the leg is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71a, Plate II (2017). Analysis Given the Veteran's reported pain, weakness, crepitus, and discomfort, the RO assigned the initial 10 percent rating for his right knee disability. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board concludes that the weight of the probative medical and other evidence is against a finding of objective evidence of dysfunction sufficient to warrant the assignment of a higher rating. The Veteran has not reported right knee locking or instability, and the March 2014 VA examiner reported no clinical finding of instability. Thus, neither a higher rating nor a separate 10 percent rating for instability is warranted. See VAOPGCPREC 23-97; Lyles v. Shulkin, No. 16-0994, 2017 U.S. App. Vet. Claims LEXIS 1704 (Nov. 2017) ("DC 5257 compensates veterans only for knee impairment resulting in recurrent subluxation and lateral instability."). The reported loss of range of motion described during the April 2016 examination, 5 degrees of extension to 100 degrees of flexion and an additional loss of 10 degrees of flexion after repetitive motion, does not approximate the criteria for a rating higher than 10 percent under either Diagnostic Code 5260 or 5261, for knee flexion and extension. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. The effects of pain reasonably shown to be due to the Veteran's service-connected right disability are contemplated in the currently assigned 10 percent rating for painful limited knee motion. Even with consideration of the April 2016 VA examiner's note to the effect flare-ups caused functional loss that affected the Veteran's ability to walk, run, kneel, and squat, there is no indication that pain, due to disability of the right knee, caused functional loss greater than that contemplated by the 10 percent rating assigned for painful knee motion. 38 C.F.R. §§ 4.40, 4.45, 4.59. As such, the Board finds that a preponderance of the medical and other evidence of record is against a rating higher than 10 percent for degenerative joint disease of the right knee since the initial grant of service connection. Moreover, the evidence is not so evenly balanced as to allow for the application of reasonable doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.7, 4.21. 2. Residuals of Right Tibia Fracture Rating Criteria The Veteran's residuals of fracture to the right tibia are rated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5262-5271, effective January 8, 2009. Here, Diagnostic Code 5262-5271 indicates residuals of impairment of the right tibia fracture (Diagnostic Code 5262) are rated under the diagnostic code for limitation of motion of the ankle (Diagnostic Code 5271). Diagnostic Code 5262 provides the rating criteria for impairment of the tibia and fibula. A 10 percent rating is assigned for malunion with slight knee or ankle disability; a 20 percent rating is assigned for malunion with moderate knee or ankle disability; and a 30 percent rating is assigned for malunion with marked knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Nonunion of the tibia and fibula, with loose motion, requiring brace is assigned a 40 percent rating. Id. Under Diagnostic Code 5271, a 10 percent rating is assignable for moderate limitation of ankle motion, and a maximum 20 percent rating is assigned for marked limitation of ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. ). While the schedule of ratings does not provide any information as to what manifestations constitute "moderate" or "marked" limitation of ankle motion, guidance can be found in VBA's M21-1 Adjudication Procedures Manual. Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.4.o. Standard range of ankle motion is from 0 to 20 degrees on dorsiflexion, and from 0 to 45 degrees on plantar flexion. 38 C.F.R. § 4.71, Plate II (2017). Analysis Considering the evidence of record in light of the applicable criteria, the Board finds that the weight of the probative medical and other evidence of record is against a finding of a rating greater than 10 percent for residuals of a fracture to the right tibia from the January 8, 2009 effective date of the award of service connection through April 27, 2016. The competent and probative evidence of record through April 27, 2016 does not establish that the Veteran has malunion of the tibia and fibula that is required to support the assignment of a compensable (10 percent) rating under Diagnostic Code 5262. Rather, service records include a November 1969 report of Medical Board Proceedings showing that the Veteran had "well-healed" fractures of both tibias. See 11/2/15 Military Personnel Records, page 6. The post-service medical evidence also weighs against a higher rating as it does not reference of malunion of the Veteran's right tibia/fibula. For these reasons, the assignment of a compensable rating, let alone a rating higher than 10 percent, is not warranted on this basis, under Diagnostic Code 5262. The Board finds that the competent evidence obtained at the January 2009 and March 2014 VA examinations are indicative of a right ankle disability picture with no more than moderate limitation of right ankle motion. As such, the evidence more nearly approximates the assigned 10 percent rating under Diagnostic Code 5271. However, on April 28, 2016, the VA examiner noted the Veteran's reports of flare-ups with walking and functional loss as limited ability to walk and stand. The Veteran's disability was manifested primarily by pain with some limitation of motion due to that pain. He had decreased right ankle plantar flexion to 25 degrees although dorsiflexion was just to 15 degrees, with a further 5 degrees of loss in each arc of motion in the ankle, with dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 20 degrees after repetitive motion. The further loss of motion was attributed to pain, fatigue, weakness, and lack of endurance. The examination findings were consistent with the Veteran's reported functional loss during flare-ups. Additionally, this examination report shows pain on weight bearing, pain on localized palpation, and crepitus. The Board notes reduced motion findings that represent a nearly 50 percent loss of ankle motion. Based on the totality of the Veteran's right ankle disability picture, to include limited motion, pain, fatigue, weakness, lack of endurance, pain on weight bear, crepitus, more nearly approximates a higher 20 percent rating. 38 C.F.R. § 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. In reaching this conclusion, the Board recognizes that, in its September 2016 rating decision, the RO stated that marked limitation of motion of the ankle required dorsiflexion less than 5 degrees or plantar flexion less than 10 degrees. While the Board notes that the AOJ likely based its denial on the M21-1 guidance. The Board finds that the totality of the evidence warrants a higher rating. Additionally, the Board notes that the M21-1 is only guidance to the Board, but it is not binding on it. 38 C.F.R. § 19.5 (2017). In sum, after considering the medical and other evidence of record, and based on the frequency, duration and overall severity of his right ankle disability, the Board finds that the Veteran's right ankle disability more closely approximates the currently assigned 10 percent rating prior to April 28, 2016, and a 20 percent rating thereafter. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. The effects of pain reasonably shown to be due to the Veteran's service-connected residuals of right tibia fracture disability are contemplated in the currently assigned 10 percent rating for painful limited ankle motion. There is no indication that pain, due to disability of the right tibia fracture caused functional loss greater than that contemplated by the 10 percent rating assigned for painful and limited ankle motion prior to April 28, 2009, and the 20 percent rating thereafter, as assigned herein. 38 C.F.R. §§ 4.40, 4.45, 4.59. As such, the Board finds that a preponderance of the medical and other evidence of record is against a rating higher than 10 percent for residuals of a right tibia fracture since the initial grant of service connection from January 8, 2009 through April 27, 2016. A 20 percent rating is warranted for the residuals of the right tibia fracture from April 28, 2016. The benefit of the doubt has been resolved in the Veteran's favor on material issues, as applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.7, 4.21. All Issues The Board finds that at no time since the Veteran filed his most recent claim for service connection, have the disabilities on appeal been more disabling than as currently rated under the present decision of the Board. ORDER An initial rating higher than 30 percent for psychiatric disability from January 8, 2009 through April 28, 2016 is denied. An initial rating higher than 10 percent for degenerative joint disease of the right knee from January 8, 2009 is denied. An initial rating higher than 10 percent for residuals of a right tibia fracture from January 8, 2009 through April 27, 2016 is denied. A rating of 20 percent for residuals of a right tibia fracture from April 28, 2016 is granted. REMAND Psychiatric Disability The March 2014 and April 28, 2016 VA examiners reported that the Veteran was cleanly, casually, and appropriately groomed and denied suicidal and homicidal ideations. However, in May 2017, VA hospitalized the Veteran for alcohol detoxification and referred him to a substance abuse program. See 10/23/17 CAPRI (Boston VAMC), page 11. A mental health discharge record includes a brief summary of his hospital course that reflected a problem of dangerousness: the Veteran was a "danger to [s]elf due to [s]uicidal [i]deation - reported suicidal wishes...with fantasies of committing suicide by asphyxiating himself with [carbon monoxide] using his car inside his garage; [and current[ly] denying suicidal ideation; [d]anger to self due to poor self-care - needs further evaluation." His psychiatric issues included unspecified depressive disorder with suicidal ideation likely due to adjustment disorder, as the Veteran reported that his transient suicidal ideation was related to an upsetting verbal encounter with his wife regarding the negative impact of his alcohol binges on his son, with a need to rule other etiologies, including alcohol-induced mood disorder, with depressive features; due to chronic illness, and/or primary psychiatric illness. Such evidence suggests that the Veteran's service-connected psychiatric disability may have worsened since his last VA examination on April 28, 2016. Given the evidence of a change in the condition, the Veteran is entitled to a new examination. 38 C.F.R. § 3.327; Snuffer v. Gober, 10 Vet. App. 400 (1997). Further, although service connection is precluded for primary alcohol abuse and for secondary disabilities resulting from primary alcohol abuse, service connection is appropriate if alcoholism is secondary to a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). The Board finds that competent medical evidence to address this issue is needed. Recent medical records regarding the Veteran's treatment at the Boston, Providence, and Bedford VAMCs since September 2017 should be obtained. TDIU In the case of a claim for a TDIU, the Board may not reject that claim without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The Veteran's service-connected disabilities include residuals of a left tibia fracture and psychiatric disability, each evaluated as 30 percent disabling; left thigh scars, right knee, fracture residuals with injury to Muscle Group XII of the left tibia, tinnitus, and hearing loss, each evaluated as 10 percent disabling, and residuals of a right tibia fracture, evaluated as 10 percent disabling prior to April 28, 2014 and as 20 percent disabling thereafter. He meets several of the factors required for combining disabilities for the purpose of meeting the single disability adequate for TDIU purposes and, as such, the Veteran's service-connected disabilities meet the percentage rating standards for TDIU since January 8, 2009. 38 C.F.R. § 4.16(a) (2017). The matter to be considered is whether the Veteran's service-connected disabilities render him unemployable. Here, the Board finds that the Veteran should be assessed by the appropriate specialists to produce evidence on the impact of his service-connected disability on his ability to secure or obtain substantially gainful employment. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all records of the Veteran's VA treatment for psychiatric disability since September 2017. If any requested records cannot be obtained, inform the Veteran what records could not be obtained, the efforts made to obtain the records, and what further actions will be taken on his claim. 2. After completing the development requested above, schedule the Veteran for a VA psychiatric examination, to determine the current severity of his service-connected psychiatric disability since April 29, 2016. The claims folder should be reviewed by the examiner in conjunction with the examination. The VA examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's alcohol dependence was caused or aggravated (i.e., increased in severity beyond natural progression) by his service-connected psychiatric and/or physical disabilities. 3. Request an appropriate specialist or specialists conduct an assessment (records only, no physical examination needed unless so determined by the specialist) to evaluate the impact of the Veteran's service-connected disabilities on his ability to function in an occupational setting. The claims file, to include this remand should be reviewed by the specialist in order to become familiar with his pertinent medical history. a. The specialist should assess the functional impairment caused by the Veteran's service-connected disabilities (residuals of left and right tibia fractures, injury to Muscle Group XII due to the left tibia fracture, right knee disability, left thigh scars, psychiatric disability, tinnitus, and hearing loss) on his ability to work. The examiner should give consideration to the Veteran's level of education, special training, and previous work experience, but should not consider his age or the impairment caused by his nonservice-connected disabilities. Comment on the effect of the Veteran's service-connected disabilities on his ability to function in an occupational environment and describe any identified functional limitations. Focus and reflect on the functional impairments and how these impairments impact occupational and employment activities. As appropriate, the specialist should identify (provide examples of) the types of employment that would be inconsistent with the Veteran's service-connected disabilities (in light of his education and work experience) and any types of employment that would remain feasible despite the service-connected disabilities. b. A comprehensive rationale for all opinions expressed must be provided in the report. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals 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. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs