Citation Nr: 1802833	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  15-16 105	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder, to include PTSD. 

2.  Entitlement to service connection for a psychiatric disorder, to include PTSD. 

3.  Entitlement to an increased rating in excess of 10 percent for left knee patellofemoral syndrome with effusion and meniscal injury status post-meniscectomy (left knee disability).

4.  Entitlement to an increased rating in excess of 10 percent for left knee patellofemoral syndrome with effusion and meniscal injury status post-meniscectomy with instability (left knee instability).

5.  Entitlement to a compensable rating for scarring of the left-knee status-post meniscectomy

6.  Entitlement to a total disability rating based on individual unemployability (TDIU).
WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Sarah Campbell, Associate Counsel


INTRODUCTION

These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the application to reopen service connection for PTSD and denied increased ratings for left knee patellofemoral syndrome with effusion and meniscal injury status post-meniscectomy, and left knee instability associated with such disability, currently assigned separate 10 percent ratings. 

The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

Although the Veteran also appealed the denial of service connection for a right knee disability, service connection was granted for this disability in an unappealed March 2017 rating decision.  As this represents a full grant of the benefit sought on appeal, this issue will not be considered herein. 

The Veteran testified at a hearing before the undersigned in November 2017 and a copy of the hearing transcript is of record.

Although previously characterized as a claim for service connection for PTSD, to include consideration of various other psychiatric diagnoses of record, the Board has broadened the claim, consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009)).  

The Board additionally notes after certification of the issues to the Board, additional medical evidence has been added to the record after the RO's last adjudication of the claims in the April 2015 statement of the case (SOC), which includes a January 2017 VA knee examination, as well as updated VA treatment records.  However, the evidence related to the knees were considered in a March 2017 rating decision,  which continued the 10 percent rating.  The RO thus considered the evidence, although not in the precise format indicated by the relevant regulations. 38 C.F.R. § 19.31(b)(1) (requiring issuance of a SSOC when the AOJ receives additional pertinent evidence after a SOC or the most recent supplemental SOC (SSOC) has been issued and before the appeal is certified to the Board).  To remand for issuance of a SSOC that would perform the same function as the March 2017 rating decision would merely produce additional burdens on VA's adjudication system with no benefit flowing to the Veteran.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (citing Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)); see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution")).

As indicated in the November 2017 Board hearing, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2) (2012).

The matters of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder, to include PTSD, increased ratings for left knee disability and left knee instability, and left knee scar are addressed in the decision below, and the matters of service connection for a psychiatric disorder, to include PTSD and entitlement to a TDIU are addressed in the remand and are remanded to the RO.  


FINDINGS OF FACT

1.  In a March 2013 rating decision, the RO denied entitlement to service connection for PTSD.  The Veteran did not file a notice of disagreement and new and material evidence was not received within the one year appeal period.

2.  Evidence received since the March 2013 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a psychiatric disorder and raises a reasonable possibility of substantiating the claim.

3.  Throughout the appeal period, the Veteran's left knee disability has been manifested by painful motion of the left knee, with flexion limited to 10 degrees with pain during flare-ups.

4.  Throughout the appeal period, the Veteran's left knee disability produced moderate lateral instability; however, the evidence does not show that these symptoms more nearly approximated severe lateral instability or subluxation.

5.  The evidence is at least evenly balanced as to whether the Veteran's scarring of the left knee post-meniscectomy more closely approximates once scar that is painful or unstable.


CONCLUSIONS OF LAW

1.  The March 2013 rating decision that denied the application to reopen the claim for service connection for PTSD is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017).

2.  Evidence received since the March 2013 rating decision is new and material and the criteria for reopening of the claim for entitlement to service connection for a psychiatric disorder, to include PTSD have, therefore, been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

3.  The criteria for an increased rating of 30 percent, but no higher, for left knee disability have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260 (2017).

4.  The criteria for an increased rating of 20 percent, but no higher, for left knee lateral instability have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2017).

5. With reasonable doubt resolved in favor of the Veteran, the criteria for a 10 percent rating, but not higher, for scarring of the left knee post-meniscectomy have been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, DC 7804 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with regard to 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).

In connection, although the VA examinations did not conduct the range of motion testing required under Correia v. McDonald, 28 Vet. App. 158 (2016), as the Board has granted the maximum schedular rating under DC 5260, as explained below, the Board finds additional Correia testing is not necessary.  See Sabonis, 6 Vet. App. at 430 (1994). 

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims.

Analysis

I.  Application to Reopen

Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c).  An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits.  The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

By way of background, the Veteran's initial claim for service connection for PTSD was denied in a December 2001 rating decision.  In connection, the Board notes that although the rating decision did not list service treatment and personnel records in the evidence considered, the April 2001 request for information record notes that all records were mailed to the RO at that time.  Accordingly, the Board finds that all service records were considered by the RO in the December 2001 rating decision.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) ("absent specific evidence indicating otherwise," VA is presumed to have reviewed all evidence in the record when making a determination as to service connection.)

Subsequently, the Veteran filed an application to reopen in October 2012, which was denied in a March 2013 rating decision.  The Veteran filed a motion for reconsideration in April 2013 and he submitted a PTSD stressor statement in May 2014.  The RO denied his application to reopen in October 2014.  The Veteran filed a notice of disagreement (NOD) in December 2014.  In February 2015, the Veteran requested that his NOD be changed to a reconsideration request.  An April 2015 rating decision continued to deny the application to reopen and the RO continued to process the claim and issued a statement of the case in April 2015.  The Veteran filed his substantive appeal later that month.  

The Veteran was notified of the March 2013 denial in that same month, but he did not appeal this issue, as indicated above.  In addition, the Veteran did not submit new and material evidence within the one year appeal period, and no additional service records have been received at any time pertinent to the previously disallowed claim for service connection, warranting re-adjudication of the claim (see 38 C.F.R. § 3.156(c)).  The denial, therefore, became final.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.

The evidence received since the March 2013 rating decision includes a May 2014 PTSD stressor statement indicating that he was directed to assist in transporting body bags of fallen servicemen from a helicopter to the morgue due to a training accident and that body remains fell out of the bag.  The Veteran indicated that he experienced psychiatric symptoms ever since that incident.  As this evidence relates to the bases for the prior denial and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a psychiatric disorder, reopening of the claim is warranted.

II. Increased rating

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.  

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology or manifestations of the conditions is not duplicative or overlapping.  38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). 

A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has 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).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation.  

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40. 

When evaluating musculoskeletal disabilities, VA must consider additional rating factors including functional loss.  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.  38 C.F.R. § 4.40.  Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement.  38 C.F.R. § 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  38 C.F.R. § 4.40.

Pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45, but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance.  Mitchell (Tyra) v. Shinseki, 25 Vet. App. 32 (2011).

Painful motion of a major joint or group of minor joints caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under DCs 5003 and 5010, even though there is no actual limitation of motion.  See 38 C.F.R. §§ 4.40, 4.59, 4.71a, DC 5003; VAOPGCPREC 09-98 (August 1998), citing Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991).  Again, the Court has clarified that general painful motion under 38 C.F.R. § 4.59 do not require the presence of arthritis.  Burton v. Shinseki, 25 Vet. App. 1 (2011), aff'd, 479 F. App'x 978 (Fed. Cir. 2012).  

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.

It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14 (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses).

When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's left knee disability with limitation of motion has been evaluated as 10 percent disabling based upon limitation of motion under DC 5260.  The Veteran's left knee instability is rated as 10 percent disabling based under DC 5257.

DC 5260 provides the rating criteria for limitation of flexion of the leg.  Under this diagnostic code provision, flexion that is limited to 60 degrees is noncompensable; flexion that is limited to 45 degrees warrants a 10 percent disability rating; flexion that is limited to 30 degrees warrants a 20 percent disability rating; and flexion that is limited to 15 degrees warrants a 30 percent disability rating.  38 C.F.R. § 4.71a, DC 5260.  

DC 5261 provides the rating criteria for limitation of extension of the leg.  Under this diagnostic code provision, extension that is limited to 5 degrees is noncompensable; extension that is limited to 10 degrees warrants a 10 percent disability rating; and extension limited to 15 degrees warrants a 20 percent disability rating.  Extension limited to 20 degrees warrants a 30 percent disability rating; extension limited to 30 degrees warrants a 40 percent disability rating; and extension limited to 45 degrees warrants a 50 percent disability rating.  38 C.F.R.    
§ 4.71a, DC 5261.  A veteran may receive separate ratings for limitations in both flexion and extension.  See VAOPGCPREC 9-2004.

Normal range of knee motion is 140 degrees of flexion and zero degrees of extension.  38 C.F.R. § 4.71, Plate II.  VA General Counsel has provided that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and under DC 5261 (limitation of extension of the leg), may be assigned for disability of the same joint.  VAOPGCPREC 9-2004 (September 2004).  

The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, DC 5257.

VA General Counsel provided guidance in VAOPGCPREC 23-97 (July 1997) that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability.  When a knee disorder is already rated under DC 5257, the Veteran must also have limitation of motion under DC 5260 or 5261 in order to obtain a separate rating for arthritis.  If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned.

In VAOPGCPREC 9-98, General Counsel also clarified, if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59.  Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under DC 5003 in light of sections 4.40, 4.45, 4.59 must be considered.  See Lichtenfels, 1 Vet. App. 484. Absent X-ray findings of arthritis, limitation of motion should be considered under DCs 5260 and 5261.  The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261. 

The terms slight, moderate, and marked as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence.  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2 , 4.6.

VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-7.  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  However, in Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court rejected VA's argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient.  Id. at 428-429.  The Court held that under § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," explaining that § 4.59 speaks to both painful motion of joints and actually painful joints.  Id. at 425.  Moreover, the Court held that § 4.59 does not require "objective" evidence, but can be satisfied with lay and other non-medical evidence.  Id. at 429.  Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The Veteran filed his claim for increase in September 2014. 

An October 2014 VA examination report reflects the Veteran reported left knee pain with a constant aching pain in the knee.  He stated that the left knee shifts and he gets significant pain in the knee.  He stated that he normally uses a cane, but he lost it.  His left knee occasionally swells up.  He stated that the knee "pops" and use of the stairs make the knees worse.  The Veteran uses a knee brace and cane.
He states that he has worked as a truck driver, but his knees bother him, so he cannot run a clutch.  When he gets a flare, he tries to stay off of his knees and ice his knees.  It usually takes a day to recover and he cannot kneel.

Initial left knee flexion was to 95 degrees, with objective evidence of pain at 80 degrees.  Left knee extension was to 0 degrees with no objective evidence of pain.  The Veteran performed repetitive use testing with three repetitions without any additional limitation of motion.  Functional loss included less movement than normal, pain on movement, swelling, and disturbance of locomotion.  Joint stability testing revealed anterior instability of 2+ (5-10mm) and normal posterior and medial-lateral instability.  The Veteran had a meniscus condition with frequent episodes of joint pain and effusion with a meniscectomy in 2011.  The examiner observed a scar, but indicated it was not painful, and or unstable, or greater than 6 square inches.  The examiner noted the Veteran used a brace occasionally and a cane regularly for his instability.  With regard to functional impact on his ability to work, the examiner noted he would have significant impact on walking distances, climbing stairs, hills, which would impact jobs such as construction.  The Veteran stated his knee has impacted his ability to drive commercial trucks due to pain              using left knee running a clutch.  The examiner noted joint instability and symptoms were consistent with anterior cruciate ligament disruption and are considered a continuation of the previously service-connected left joint meniscectomy with instability.  He now has evidence of moderate to severe left knee arthritis which is a progression of his left knee meniscectomy with instability, not triggered by his       patellofemoral syndrome as patellofemoral syndrome is not an initiator of arthritis. The examiner concluded that it is expected that the Veteran would lose 30 degrees of additional ROM with left knee flexion due to pain on use during flare-ups. 

A May 2016 VA treatment record notes the c-rays revealed the Veteran's left knee was negative for acute fracture or dislocation.  There was no obvious knee joint effusion.  There was mild to moderate tri-compartmental degenerative joint disease, slightly progressed from the previous study.  He also has chronic bilateral knee discomfort and it can get up to 7/10.  There was no effusion, no erythema, no joint line tenderness, no anterior or posterior drawer sign, and no McMurray sign.  

A June 2016 VA treatment record notes left knee shows very mild varus alignment. Active range of motion was 5 to about 115 degrees.  No swelling or effusion.  His knee was very stable with all ligaments intact.  He had some medial joint line osteophytes, but no crepitus.  No neurovascular deficits.  The Veteran's left knee was injected with Kenalog and Xylocaine and the Veteran used a medial unloading brace.  He notes that he is functioning quite well now after the 2008 surgery, but at times the knee can get quite painful, and other times minimally so.  He was given braces about 2.5 years ago; they were large stability type braces.  He stated that they are kind of cumbersome, and so he really does not wear them very much and was unsure if they are particularly helpful.

A September 2016 VA treatment record notes the Veteran did not run or engage in prolonged walking.  He reported he was asymptomatic he was planning to get a job at office development and planning office job and he did not anticipate strenuous activity with this job.

An October 2016 VA treatment record reflects the Veteran reported he was not very active due to his left knee.  He recently acquired a new bike and has had steroid injections for the knee, but does not take regular NSAID for his knee.  He reported daytime somnolence and that he gave up Uber driver job due to somnolence while driving.  He reported that his "knee blew out" and he fell backward whacking his head on the floor.  

A January 2017 VA examination report reflects the Veteran stated that pain on left knee was 7 out of 10 at baseline and 9 out of 10 with flare-ups.  He reported he can walk and ride stationary bike for exercise, but he does not run or play basketball anymore.  He stated his left knee still feels unstable, though denies subluxation of patella.  Minimal ambulation caused left knee to swell.  The Veteran reported he had surgery arthroscopically.  He reported it was a meniscectomy and general debridement type of surgery.  He denied a cadaveric ACL or PCL placement.  His knee pain was getting progressively worse.  The knee locks and swells frequently at least twice a week.  He will wake up with a swollen knee and he cannot move it until it "unlocks."  His left knee pain is constant, aching, and moderate to severe.  He gets flare ups twice a week that last most of the day.  His pain is worse with prolonged sitting/standing/walking, stairs/hills, bending, and cold weather.  He treats the pain with heat, stretching, and rest.  He uses a knee brace every day and a cane at times.  He denied any more surgeries on the left knee.  He was told it needed replacement.  During flare ups, he can only rest and use heat until it resolves.  He no longer plays sports or exercise.  He can no longer use the clutch as a truck driver.  He has to modify most activities and no longer will bend or lift much.  

He was able to perform repetitive use testing with at least three repetitions.  The examiner noted a history of recurrent effusion.  He has had to have fluid drawn off in the past and the last time was in 2015.  Joint stability testing revealed normal anterior instability (Lachman test), posterior instability (Posterior drawer test), and lateral instability.  The Veteran had an arthroscopic knee surgery in 2008 and he continues to have pain and swelling in the knee.  There were two scars, one at the lateral mid patella area measures 1.5 X 0.5 cm and the second scar is located at the medial aspect of the knee at the lower patella and measures 0.5 X 0.5.  With regard to the functional impact of his knee on his occupational duties, the Veteran has problems with using the clutch and he can no longer drive a truck.  He
cannot do any physical labor due to knee pain.

Initially, the Board notes that although the VA examinations did not conduct testing required under Correia, 28 Vet. App. 158, given that the Board is granting the maximum schedular evaluation of 30 percent under DC 5260, the Board finds a remand for Correia complied testing would serve no useful purpose.  

Throughout the period on appeal, the Veteran's left knee produced range of motion of at least 10 degrees.  Here, the October 2014 examination indicates the Veteran's left knee flexion of 95 degrees would be reduced about another 30 degrees during flare-ups, which would be flexion to 65 degrees.  The January 2017 VA examination indicates flexion limited to 40 degrees, and applying the estimated reduction of 30 degrees, would amount to 10 degrees in flexion.  The Board therefore finds that the maximum 30 percent rating for limitation of flexion is warranted to contemplate the Veteran's symptoms, to include additional limitation in flexion in the left knee due to flare-ups.  In addition, the Veteran's extension was to zero degrees with no objective evidence of pain at that point during the entire appeal period.  Further, although, the Veteran indicated that he could not move his left leg during flare-ups, the Board notes that this statement is inadequate to grant both the maximum in flexion under DC 5260 and for limitation of extension under DC 5261.  Here, the Veteran's primary complaint has consistently been described as the inability to flex and bend, rather than extend and there is no other indication that flare-ups resulted in additional loss of extension such that a separate rating for limitation of extension would be warranted.

Regarding the Veteran's left knee instability; the Board finds that a 20 percent rating is warranted for the entire appeal period.  Here, the VA examination reports and treatment records noted instability, popping, swelling, effusion, and use of a knee brace and a cane.  Further, although the January 2017 VA examiner found no instability, the Veteran's statements, instability noted in the VA treatment records, and the October 2014 VA examiner finding of anterior instability also confirmed that the Veteran had instability, consistent with the Veteran's lay reports of instability, which he reported caused him to fall on at least one occasion.  The Board also finds that a rating higher than 20 percent is not warranted for the entire appeal period, as there is specific findings of normal lateral instability on the October 2014 and January 2017 VA examinations.  Thus, the medical and lay evidence reflects competent evidence of moderate instability in the left knee, and thus, warrants an increased 20 percent rating for the left knee, but no higher, for the entire appeal period under DC 5257.

The RO has assigned noncompensable ratings for the Veteran's scarring of the left knee under 38 U.S.C.A. § 4.118, DC 7805, which instructs to evaluate the effects of scars under DCs 7800, 7801, 7802, and 7804.  Here, the Veteran's scar is superficial and linear, and is not located on his head, face, or neck.  As such, his laceration scar of the left knee should be rated under DC 7804 for unstable or painful scars.  See 38 C.F.R. § 4.118.

Here, although the VA examination reports indicate that the Veteran's scar was not painful, given the Veteran's consistent report of pain with the scar, the Board finds a compensable rating for the left knee scarring is warranted for the entire appeal period.  38 U.S.C.A. § 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.118, DCs 7800-7805.

The Board has considered and decided the Veteran's claim based on the evidence summarized above.  Notably, no other issues have been raised by the Veteran or the evidence of record with respect to the claims herein decided.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
ORDER

The application to reopen the claim for entitlement to service connection for PTSD is granted.

Entitlement to an increased rating of 30 percent for left knee disability, but no higher, is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to an increased rating of 20 percent for left knee instability, but no higher, is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to a 10 percent rating, but no higher, for scarring of the left-knee status-post meniscectomy is granted, subject to controlling regulations governing the payment of monetary awards.


REMAND

The Veteran has indicated that he experiences psychiatric symptoms as a result of his period of active service in a hospital in Nuremberg, Germany.  The Veteran reported that he was directed to assist in transporting fallen servicemen's bodies, as result of a training accident, from a helicopter to the morgue in the hospital.  He further reported that while transporting a body, body parts fell out of the body bag he was carrying due to a defective zipper/closer and he had to put the remains back into the bag. He contends he experienced psychiatric symptoms since then.

Under the VCAA, VA must provide an examination when there is competent evidence of persistent or recurrent symptoms of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d).  The threshold for finding that symptoms of a disability may be associated with service is low.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  

The Board notes that the October 2014 memorandum determined that the event described by the Veteran was insufficient to send to the US Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) record.  Given that the Veteran has provided the location and a specific time frame, as well as names of other servicemen who could confirm that the Veteran was tasked with the duty to transport fallen soldiers and the events have not yet been verified by the JSRRC, the Board finds that upon remand, the AOJ must contact the JSRRC and any other appropriate entity to attempt to verify the Veteran's reported stressor. 

Finally, the issue of entitlement to a TDIU is deemed to have been submitted as part of any increased rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible.  See Rice, 22 Vet. App. 447.  

Here, the Veteran has filed a formal TDIU claim in October 2016 in which he indicated his knee, non-service connected back problems and depression prevents him from working.  He has also indicated in his multiple VA examinations that he could not work as a truck driver due to his service-connected knee disabilities, however, 2016 to 2017 VA treatment records note the Veteran was working for Uber, but that he stopped working due to his sleep issues, and that he planned on working at an office development and planning job, and he did not anticipate strenuous activity with this position.

Therefore, as the Veteran's current employment status is unclear and there is some evidence of unemployability due to the Veteran's service-connected knee disabilities, and the issue of entitlement to a TDIU has been raised, the RO should conduct additional development of the TDIU claim and readjudicate the claim after the service connection claim for a psychiatric disorder has been readjudicated .  

Any updated VA treatment records should be obtained on remand.  See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016).  

Accordingly, the remaining issues are REMANDED for the following action:

(Please note, 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 updated VA treatment records.

2.  Undertake appropriate action, to include contact with the JSRRC (and other appropriate source(s)), to attempt to independently verify the occurrence of the Veteran's alleged stressful experience in September 1988 of having transported fallen servicemen's bodies as a result of a training accident from a helicopter to the morgue in the hospital. 

3.  The AOJ shall schedule the Veteran for a VA mental disorders examination by an appropriate physician so as to determine the nature and etiology of any psychiatric disorder, to include depression and PTSD, found on examination.  The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with conducting the examination of the Veteran.  All testing deemed necessary shall be undertaken. 

The examiner is directed to answer the following questions:

(a) Is it at least as likely as not that the Veteran meets the criteria for a diagnosis of PTSD.  If not, the examiner should specify which of the criteria are not met. 

If the Veteran does meet the PTSD criteria, the examiner shall specify the corroborated stressor(s) supporting the diagnosis. 

If the diagnosis of PTSD is based upon a stressor involving fear of hostile military or terrorist activity (means that the Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror), the examiner shall so state. 

(b) Is it at least as likely as not that the Veteran has a diagnosis of a psychiatric disorder other than PTSD, to include depression (as noted in the VA treatment records).  If so, is it at least as likely as not that such had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service, to include notations of alcohol use and disciplinary actions in service?

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so.
If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered.  All opinions expressed must be accompanied by a complete rationale.

4.  Following any additional indicated development, to include sending the Veteran a TDIU application (VA Form 21-8940), the AOJ should review the claims file and readjudicate the claim for a psychiatric disorder, to include PTSD, and then adjudicate the claim for a TDIU.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board.

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

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs