Citation Nr: 18139936 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-03 565 DATE: October 1, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for a left knee disability is denied. Entitlement to a disability rating in excess of 10 percent for a right knee disability is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder is remanded. FINDINGS OF FACT 1. The Veteran’s right knee symptomatology is contemplated in his current 10 percent rating assigned for his left knee chondromalacia and arthritis. 2. The Veteran’s right knee symptomatology is contemplated in his current 10 percent rating assigned for his right knee chondromalacia and arthritis CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a left knee disability are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5261. 2. The criteria for a disability rating in excess of 10 percent for a right knee disability are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to May 1974 and from June 1975 to January 1978. In August 2016, the Veteran testified at a video hearing before the undersigned Veteran Law Judge. A transcript of that hearing is of record. The Veteran claims that he is entitled to higher disability ratings for his service-connected bilateral knee disabilities. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. 4.71a, Diagnostic Codes (DC) 5260 and 5261. DC 5260 provides for a zero percent evaluation where flexion of the leg is limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. A 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. DC 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees, a 50 percent evaluation may be assigned. VA’s General Counsel has also stated that separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Additionally, 38 C.F.R. 4.71a, DC 5257, provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability. A 20 percent rating is assigned when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Descriptive words “slight,” “moderate,” and “severe” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence for “equitable and just decisions.” 38 C.F.R. 4.6. VA’s General Counsel has stated that when a knee disorder is rated under 38 C.F.R. 4.71a, DC 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. 4.71a, DC 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either DC 5260 or 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. 4.71a, Code 5257), a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). The Veteran’s service-connected knee disorders are currently rated at 10 percent for the right knee and 10 percent for the left knee. The VA afforded the Veteran a VA knee examination in March 2015. The Veteran reported a history of bilateral knee arthroscopic surgery and alleged difficulty walking due to pain in his knees. Range of motion showed bilateral flexion from zero to 90 degrees and extension from 90 degrees to zero. The examiner noted objective evidence of painful motion with the Veteran grabbing the examiner’s arm during testing. The examiner reported normal joint stability tests and no evidence or history of recurrent patellar subluxation/dislocation. The Veteran was afforded another VA examination in November 2017. The Veteran reported pain in his knees when he stands for long periods of time. Range of motion testing showed: bilateral flexion of 140 degrees and extension ending at zero degrees, with no objective evidence of painful motion. The examiner reported normal joint stability tests and no evidence or history of recurrent patellar subluxation/dislocation. With regards to both knees, the November 2017 VA examination indicates that there has been improvement. At the very least, the record indicates that the Veteran’s condition has not worsened. The Board has considered the Veteran’s statements regarding the difficulty he has with walking and standing, as well as his subjective symptoms, including knee pain. However, the Board concludes that the medical findings on objective examinations are of greater probative value than the lay allegations regarding the severity of the Veteran’s right knee disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim for evaluations in excess of 10 percent for the Veteran’s service-connected bilateral knee disabilities. This does not suggest that the Veteran does not have any problems with his knees (he clearly does). If he did not have any problems with his knees there would be no basis for the 20% evaluation for this problem (which, very generally, indicates a 20% reduction in the ability to work). The question is not if the Veteran has a knee problem, but the degree of the problem. REASONS FOR REMAND The Veteran contends that he suffers from post-traumatic stress disorder as a result of his active service. The Board notes that VAMC records show the Veteran has been diagnosed with, and received treatment for, dysthymic disorder and depression. A VA examination in December 2012 specifically ruled out PTSD, instead finding that the Veteran suffered from adjustment disorder with mixed anxiety and depressed mood. The examiner attributed the Veteran’s condition and associated symptoms to reported childhood trauma. However, the Veteran submitted a June 2013 private medical opinion diagnosing him with PTSD and deeming the condition to be service induced. The matter is REMANDED for the following action: 1. Obtain copies of all relevant ongoing treatment records pertaining to the Veteran’s PTSD. The evidence obtained, if any, should be associated with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and etiology of his psychiatric disabilities, to include PTSD. The claims file must be made available to the examiner for review. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current psychiatric disability had its onset during, or is related to, active service. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should cite to the medical and lay evidence of record, and discuss the particulars of this Veteran’s medical history. 3. Then, readjudicate the issues remaining on appeal. If any of the benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative, with adequate time to respond. Then, return the case to the Board. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel