Citation Nr: 18140097 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-13 876 DATE: October 2, 2018 ORDER Entitlement to an increased rating in excess of 10 percent for right knee degenerative arthritis, is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction, is denied. Entitlement to a rating in excess of 70 percent for major depressive disorder (MDD) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s right knee disability is manifested by flexion to at least 70 degrees and full extension; subluxation and/or instability or ankylosis are not shown. 2. The Veteran’s diabetes mellitus, type II, with erectile dysfunction does not require the regulation of activities, and there are no separately ratable compensable complications in light of the fact that there is no evidence of deformity of the penis. 3. The Veteran’s MDD has not been productive of total occupational and social impairment; symptoms of the Veteran’s MDD have not included gross impairment in thought processes or communication. 4. The Veteran’s service-connected MDD precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for the Veteran’s right patellofemoral syndrome is not warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; Diagnostic Codes (DCs) 5260, 5261. 2. The criteria for a rating in excess of 20 percent for diabetes mellitus, type II with erectile dysfunction have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.119, DC 7913. 3. The criteria for a rating in excess of 70 percent for MDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, DC 9434. 4. The criteria for TDIU have been met. 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1984 to April 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In December 2016, the Board granted a motion for the Veteran’s former representative to withdraw from representation. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in increased rating claims when the issue of unemployability is raised either expressly or by the record. The Veteran has not worked since he entered an in-patient substance abuse treatment program on August 21, 2015. Medical evidence attributes the Veteran’s lack of employment to his service connected MDD. As noted above, TDIU has been raised by the record per Rice. This case raises no further issues, other than those adjudicated below. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes (DC) identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 1. Right knee arthritis with limitation of flexion The Veteran contends that his service connected right knee disability is worse than contemplated by the currently assigned 10 percent disability rating. After a review of the evidence, the Board finds that a rating in excess of the currently assigned 10 percent rating for a right knee disability is not warranted. 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). A knee disability may be rated under 38 C.F.R. § 4.71a, Code 5256 (for ankylosis), Code 5257 (for other impairment, including recurrent subluxation or lateral instability), Code 5258 (for dislocated semilunar cartilage), Code 5259 (for symptomatic removal of semilunar cartilage), Code 5260 (for limitation of flexion), Code 5261 (limitation of extension), Code 5262 (impairment of the tibia and fibula), and Code 5263 (genu recurvatum). 38 C.F.R. § 4.71a. DC 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability of a knee; 20 percent rating for moderate recurrent subluxation or lateral instability; and 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. DC 5260 provides a 10 percent rating when flexion of the leg limited to 45 degrees and a 20 percent rating when flexion is limited to 30 degrees. DC 5261 provides a 10 percent rating when extension is limited at 10 degrees and a 20 percent rating extension limited at 15 degrees. [Flexion of the knee to 140 degrees is considered full; extension to 0 degrees is considered full. Plate II. 38 C.F.R. § 4.71a.] Separate ratings may be assigned where a knee disability includes both compensable limitation of flexion under Code 5260 and compensable limitation of extension under Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). During an August 2013 VA examination, the Veteran reported current symptoms of knee pain, telling the examiner that his “condition had gotten worse.” The Veteran reported pain, weakness, fatigability and/or incoordination and additional limitation of functional ability of the right knee during flare-ups or repeated use over time. Range of motion tests performed during the examination revealed flexion was 70 degrees and extension was to 0 degrees. The examiner reported that range of motion loss of the right knee during pain is approximately 10 degrees during flexion. Joint stability tests in the right knee were normal. No evidence of subluxation or ankylosis was noted. The evidence does not support the assignment of the next higher (20 percent) rating for his service-connected knee disability. There was no finding of ankylosis, subluxation, or instability. In addition, flexion was to 70 degrees, and extension was to 0 degrees. The findings of the August 2013 examination do not support a rating in excess of 10 percent based on limitation of motion, nor a higher (or separate) evaluation on any basis. In reaching the conclusion that a higher rating is not warranted, the Board has considered whether the Veteran’s painful motion contributes to the actual limitation of motion such that an increased rating is warranted. Here, even when considering pain on use experienced by the Veteran, the Board finds that an increased rating for limitation of motion is not warranted. See 38 C.F.R. § 4.40. The examination report reflects that the Veteran’s functional impairment is fully contemplated in the assigned 10 percent rating. Accordingly, the claim must be denied. 38 C.F.R. § 4.7. 2. Diabetes mellitus with erectile disfunction The Veteran contends that his service-connected diabetes mellitus, type II (DM) with erectile dysfunction is worse than contemplated by the currently assigned 20 percent disability evaluation. After a review of the evidence, the Board finds that a rating in excess of the currently assigned 20 percent rating for a right knee disability is not warranted. A 20 percent evaluation is appropriate for DM under 38 C.F.R. § 4.119, DC 7913, where insulin and restricted diet or an oral hypoglycemic agent and restricted diet is required. The next higher evaluation of 40 percent disabling is available for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Even higher ratings are warranted for greater degrees of symptomatology. The regulations stipulate that compensable complications of diabetes should be evaluated separately, and noncompensable complications are considered as part of the diabetic process under DC 7913. The Board notes that “regulation of activities” is defined in DC 7913 as “avoidance of strenuous occupational and recreational activities.” Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). In this case, a review of the relevant medical records reveals that regulation of the Veteran’s activities is not required to treat his DM. The Veteran’s STRs show management of the Veteran’s DM through oral medication, substituted by insulin in later years, and diet. Post service February 2004, September 2011, and August 2013 VA examinations show that regulation of activities was not required to manage his DM. Moreover, the Veteran has not established during this appeal that he has been required to regulate his activities to manage his DM. Consequently, as a rating higher than 20 percent contemplates the regulation of activities, which has not been shown, the Board concludes that a rating in excess of 20 percent is not warranted. Regarding the Veteran’s erectile dysfunction being rated as part of the diabetic process, the evidence fails to show that a separate compensable rating is warranted. A compensable rating under the appropriate diagnostic code requires deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7520. A review ot the Veteran’s STRs and VA examinations do not reveal such a deformity nor has the Veteran contended such. Therefore, in light of the above, the Board finds that there are no separate compensable complications of diabetes to be evaluated at this time, and no other noncompensable complications to be considered as part of the diabetic process under DC 7913. 3. Major depressive disorder and TDIU The Veteran contends that his service connected major depressive disorder (MDD) is more severe than contemplated by the currently assigned 70 percent disability evaluation. After a review of the evidence, the Board finds that a rating in excess of the currently assigned 70 percent rating is not warranted. Under the General Rating Formula for Mental Disorders, the criteria for a 70 percent rating are 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9434. The criteria for a 100 percent rating are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. Id. Evaluations under 38 C.F.R. § 4.130 are “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). The symptoms listed in DC 9434 are not intended to constitute an exhaustive list, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas”-i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’“ Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9434. Consideration is also given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. During a VA mental health examination from August 2013, the Veteran presented with depressed mood, chronic sleep impairment, mild memory loss, flattened affect, motivation and mood disturbances, an inability to establish and maintain effective relationships, and an intermittent inability to perform daily living activities, including personal hygiene. The disability was summarized as occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted that, due to his job loss, the Veteran experienced depression and decreased motivation. Additionally, the Veteran was noted to isolate himself from others and did not have any friends. That said, the examiner did not check off “[t]otal occupational and social impairment,” which was an option on the Disability Benefits Questionnaire (DBQ). A June 2014 VA treatment record includes an assessment of moderate recurrent major depressive disorder, without psychosis. In a VA Metal Disorders (other than PTSD and Eating Disorders) DBQ dated October 2014, occurring during the pendency of this appeal, the Veteran presented with a depressed mood, anxiety, suspiciousness, weekly panic attacks, chronic sleep impairment, mild memory loss, flattened affect, motivation or mood disturbances, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. He also reported that he requires some assistance in performing his daily living tasks. During this examination, the Veteran admitted to self-medicating his depression with alcohol. The Veteran’s Global Assessment of Functioning (GAF) score was noted as 50. GAF scores ranging between 41 and 50 were, under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), assigned in instances of serious symptoms (like 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). The examiner opined that the Veteran could not sustain the stress from competitive work environments or be expected to engage in gainful activity due to his MDD. Additionally, the examiner noted that there was a causal relationship between medical and psychiatric difficulty, concluding that the other service connected disabilities are more likely than not aggravating the Veteran’s MDD. The Board has reviewed all of the above evidence and does not question that the Veteran’s service-connected MDD results in a very significant degree of occupational and social impairment, as represented by the assigned 70 percent evaluation. The inquiry for the Board, however, is whether the criteria for the highest (100 percent evaluation) are met. The Board finds that such criteria are not met in this case. First, the Board finds no basis for concluding that the MDD results in total occupational and social impairment. While the August 2013 VA examiner noted that the Veteran isolated himself and had no friends, this same examiner characterized the disability as having a disability corresponding to a much lower rating under DC 9434 (“occasional decrease”). This is not at all consistent with a 100 percent evaluation. Second, the Veteran has demonstrated none of the remaining symptoms (e.g., gross impairment in thought processes or communication, etc.) that would support a 100 percent evaluation. Finally, the Board finds that the October 2014 observation that, on account of MDD, the Veteran could not sustain the stress from competitive work environments or be expected to engage in gainful activity arguably falls short of signifying total occupational impairment. That having been noted, this observation as to occupational impairment is entirely consistent with the Veteran being unable to secure or follow a substantially gainful occupation due to MDD. Indeed, this is the legal standard for the grant of TDIU under 38 C.F.R. § 4.16(a), and as the Veteran is in receipt of a 70 percent evaluation for TDIU he meets the criteria for consideration on a schedular basis under that section. (Continued on the next page)   In summary, the criteria for an evaluation in excess of 70 percent for MDD are not met, but the criteria for entitlement to TDIU are met, and to that extent the appeal is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Banks, Associate Counsel