Citation Nr: 18140184 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-09 113 DATE: October 2, 2018 ORDER Service connection for tinnitus is granted. Prior to April 30, 2015, a disability rating higher than 10 percent for the left knee limitation of extension is denied. From June 1, 2015, to August 9, 2016, a disability rating higher than 10 percent for the left knee limitation of flexion is denied. Prior to August 9, 2016, subject to the law and regulations governing the payment of monetary benefits, a separate 10 percent disability rating, and no higher, for left knee symptomatic removal of semilunar cartilage is granted. From October 1, 2016, to August 31, 2017, a temporary total disability rating following left knee surgery is granted. From August 31, 2017, a disability rating of 60 percent for the left knee disability is granted. An initial disability rating higher of 70 percent, and no higher, for major depression is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for erectile dysfunction, to include special monthly compensation for loss of use of a creative organ, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to service. 2. Prior to April 30, 2015, a disability rating higher than 10 percent for the left knee limitation of extension is denied. 3. From June 1, 2015, to August 9, 2016, a disability rating higher than 10 percent for the left knee limitation of flexion is denied. 4. Prior to August 9, 2016, subject to the law and regulations governing the payment of monetary benefits, a separate 10 percent disability rating, and no higher, for left knee symptomatic removal of semilunar cartilage is granted. 5. From October 1, 2016, to August 31, 2017, a temporary total disability rating following left knee surgery is granted. 6. From August 31, 2017, a disability rating of 60 percent for the left knee disability is granted. 7. For the entire appeal period, the Veteran’s depression is not manifested by total occupational and social impairment. 8. Giving the Veteran the benefit of the doubt, his service connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Prior to April 30, 2015, the criteria a disability rating higher than 10 percent for the left knee limitation of extension has not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5261 (2017). 3. From June 1, 2015, to August 9, 2016, the criteria for a disability rating higher than 10 percent for the left knee limitation of flexion has not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5260 (2017). 4. Prior to August 9, 2016, subject to the law and regulations governing the payment of monetary benefits, the criteria for a separate 10 percent disability rating, and no higher, for left knee symptomatic removal of semilunar cartilage has been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5259 (2017). 5. From October 1, 2016, to August 31, 2017, the criteria for a temporary total disability rating following left knee surgery is met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5055 (2017). 6. From August 31, 2017, the criteria for a disability rating of 60 percent for the left knee disability is met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5055 (2017). 7. The criteria for a 70 percent disability rating, and no higher, have been met for depression. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2017). 8. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1983 to August 1985 and from January 1990 to February 1990. He had a hearing before the undersigned in August 2017, as to the issue of tinnitus only. The issues of the right knee and left shoulder are not before the Board as it has not been fully appealed to the Board. Service Connection 1. Entitlement to service connection for tinnitus. The Veteran contends that he developed tinnitus due to in-service noise exposure, to include exposure to howitzer fire while picking up casings. Noise exposure is conceded. The Board concludes that the Veteran has a current diagnosis tinnitus that is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An April 2015 VA examiner found that tinnitus was not due to service, given the audiometric findings during service. The Veteran gave credible testimony during his Board hearing, as well as, lay statements such as his June 2015 notice of disagreement, as to in-service noise exposure and the chronicity of his tinnitus. Given the Veteran’s credible lay statements of record, and giving the Veteran the benefit of the doubt, the Board finds that service connection for tinnitus is granted. Increased Rating 2. Entitlement to (i) a disability rating higher than 10 percent prior to August 9, 2016 (excluding the temporary total evaluation from April 30, 2015, to June 1, 2015), (ii) a temporary total evaluation for partial left knee replacement beyond August 9, 2016, to October 1, 2016, and (iii) entitlement to a disability rating higher than 10 percent from October 1, 2016 (i) a disability rating higher than 10 percent prior to August 9, 2016, (excluding the temporary total evaluation following surgery - from April 30, 2015, to June 1, 2015) Prior to August 9, 2016, the Veteran’s service-connected left knee osteochondritis dissecans, post-operative arthrotomy with residual degenerative changes was rated under Diagnostic Code 5261 for limitation of extension (prior to the April 30, 2015, surgery) and under Diagnostic Code 5003-5260 for limitation of flexion (from June 1, 2015, to August 9, 2016 – the period after the temporary total evaluation granted for surgery). The Veteran had knee surgery on April 30, 2015. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). In the instant case, the Veteran’s left knee disability prior to August 9, 2016, was rated based on limitation of extension or flexion, with a 10 percent disability rating for extension prior to April 30, 2015 and changed to 10 percent for limitation of flexion from June 1, 2015. Prior to April 30, 2015, the Veteran did not meet compensable levels for a disability rating under Diagnostic Code 5260 for flexion (requiring limitation to 45 degrees or less). The range of motion tests have shown flexion of over 45 degrees. The April 2015 VA examiner found 10 to 120 degrees. The October 2014 VA surgery consult made similar findings of active motion 10 to 120 degrees (130 passive), noting a slight lack of full extension. Such findings are consistent with a 10 percent disability rating under Diagnostic Code 5261 for extension (requiring 10 degrees). As such, the Veteran is appropriately rated for limitation of motion based on extension prior to April 30, 2015. However, a disability rating more than 10 percent for extension is not indicated as it would require limitation higher than 10 degrees, which is not supported by the evidence of record. Following his temporary total evaluation (from June 1, 2015), the Veteran did not meet compensable levels for a disability under Diagnostic Code 5261 for limitation of extension. The December 2015 VA examiner found a range of motion of 0 to 110, which was not consistent with a compensable rating under Diagnostic Code 5261 for extension or Diagnostic Code 5260 for flexion. However, given the Veteran’s knee arthritis, in conjunction with the limitation of flexion shown, a 10 percent disability rating, and no higher, was indicated. Additionally, the Board further finds that, based on the circumstance of this case, a separate 10 percent disability rating under Diagnostic Code 5259, for symptomatic removal of semilunar cartilage is also appropriate. Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. VA examination documents that the Veteran initial had his meniscus repaired in service following a stretching injury. Furthermore, he has reported symptoms including pain and knee catching. As such, he meets the criteria for a separate 10 percent disability rating for Diagnostic Code 5259, the maximum rating possible under that code. A 20 percent rating under Diagnostic Code 5258 for dislocated semilunar cartilage, with frequent episodes of “locking, pain, and effusion,” however, is not shown. The VA examiners and VA medical providers found no effusion. The April 2015 left knee surgery provider similarly found no effusion on physical examination of the knee. The Board has considered whether a rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability is warranted. Slight instability warrants a 10 percent disability rating. A higher disability rating under that code would require moderate or severe instability, and has not been demonstrated by the evidence at any time during the appeal period. In this case, the VA examiners and VA medical providers found no instability. VA examination and VA medical providers also failed to indicate ankylosis, impairment of the tibia and fibula because of nonunion or malunion, and genu recurvatum are not indicated in this case. In the absence of such findings, evaluating the knee under Diagnostic Codes 5256, 5262, and/or 5263 is not appropriate. See 38 C.F.R. § 4.71a. The Board concludes that prior to April 30, 2015, a disability rating of 10 percent, and no higher, for left knee extension is not warranted. From June 1, 2015, a disability rating more than 10 percent for left knee flexion is not warranted. Prior to August 9, 2016, a separate 10 percent disability rating for symptomatic removal of semilunar cartilage is warranted (for the periods during which the Veteran was not already in receipt of a temporary total evaluation). (ii) extension of a temporary total evaluation for partial left knee replacement beyond August 9, 2016, to October 1, 2016 On August 9, 2016, the Veteran underwent a partial knee replacement. The RO has already granted a temporary total evaluation, from August 9, 2016, to October 1, 2016. The Veteran has argued that a 100 percent disability rating should be extended to a full one-year period, under Diagnostic Code 5055. Under 38 C.F.R. 4.71a, Diagnostic Code 5055, replacement of either knee joint warrants a 100 percent evaluation for a one-year period following implantation of the prosthesis. Thereafter, a 60 percent evaluation is warranted if there are chronic residuals consisting of severely painful motion or severe weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the disability will be rated by analogy to Codes 5256, 5261 or 5262. The mandatory minimum rating is 30 percent. The United States Court of Appeals for Veterans Claims (Court) previously held that the plain language of Diagnostic Code 5055 indicates that the regulation applies only to complete knee replacements, and not to partial knee replacements. See Hudgens v. Gibson, 26 Vet. App. 558, 561 (2014). The Board observes further that on July 16, 2015, the Secretary published a final rule in the Federal Register that interprets/clarifies VA’s interpretation of Diagnostic Codes 5051 through 5056 that a 100-percent evaluation will be in place for a period of one year when the total joint, rather than the partial joint, has been replaced by a prosthetic implant. See 80 Fed. Reg. 42040 (July 16, 2015). In May 2016, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed the judgment of the Court’s previous holding. Hudgens, 823 F.3d 630. The Federal Circuit declined to give deference to the VA’s interpretation of Diagnostic Code 5055 in the Hudgens case and held that the provisions of Diagnostic Code 5055 were applicable to partial knee replacements. The Veteran’s claim was filed prior to July 2015. As the Federal Circuit found that prior to the July 2015 regulatory amendment, Diagnostic Code 5055 did not unambiguously exclude consideration of partial knee replacements, and that Diagnostic Code 5055 applies to partial knee replacements, the Board has determined that the Veteran is entitled to a total 100 percent rating for a partial left knee replacement for the regulatory period under Diagnostic Code 5055, effective from October 1, 2016, to August 31, 2017 (because the Veteran was already granted a temporary total rating from August 9, 2016, to October 1, 2016). The Board limits this decision to the unique circumstances of this Veteran’s case. (iii) entitlement to a disability rating more than 10 percent from August 31, 2017 Turning to the period from August 31, 2017, forward, the Veteran’s left knee disability warrants a 60 percent rating under Diagnostic Code 5055, for intermediate degrees of residual weakness, pain, or limitation of motion (reassigned from Diagnostic Code 5003-5260). In a June 2018 argument, the Veteran’s attorney reported that following surgery the Veteran has had persistent knee pain. VA medical records, such as an April 2018 record, also document reported knee popping, pain, burning, and swelling. The 60 percent rating is the maximum rating possible under this diagnostic code, other than the 100 percent rating for one year following implantation of prosthesis granted above. 3. Entitlement to an initial disability rating higher than 60 percent for depression. The Veteran initially claimed service connection for depression secondary to his service-connected left knee disability and tinnitus. In a November 2016 rating decision, the RO granted service connection for depression, with a 60 percent disability rating effective July 20, 2016. The RO found that depression had been aggravated by the service-connected knee disability. The RO found that the Veteran’s symptoms were indicative of a 70 percent disability rating, but subtracted 10 percent as his baseline depression to reach a 60 percent disability rating. The RO appears to have found pre-existing depression based on VA examination findings. The Board finds, however, that the August 2016 VA examiner, and October 2016 VA addendum provider, were in fact unclear as to whether the Veteran had depression that existed prior to being aggravated by the left knee disability. The August 2016 VA examiner found that “[h]is Severe Depression is a separate condition than his left knee issues but the chronic knees issues significantly aggravate his Major Depression.” The October 2016 addendum provider (who did not perform the August 2016 VA examination) found that the Veteran “attributed his depression to his left knee injury which occurred in April 2014. Thus, it appears his baseline level…would have been occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.” Rather, the Board notes that for years prior to his re-injury of the left knee, the Veteran’s VA medical records were negative as to complaints of, or treatment for, depression. In his initial April 2016 VA mental health session, the Veteran reported self-testing on an online “depression scale” and implied that his symptoms began following his knee injury. A May 2016 VA mental health provider diagnosed him with “[d]expressive disorder due to another medical condition (chronic pain).” Additionally, the Veteran has provided credible lay statements as to not having depression prior to his knee worsening, as in a June 2018 affidavit. Given the lack of clarity of the August 2016 VA examiner and October 2016 addendum provider, the other medical evidence of record, the lay evidence of record, and giving the Veteran the benefit of the doubt, the Board finds that the Veteran’s service-connected depression should be rated without a non-service connected baseline level of 10 percent. As such, his rating would be a 70 percent disability rating. The next higher 100 percent rating, however, is not supported by the record. A 100 percent evaluation is warranted when there is evidence of total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434. The August 2016 and November 2017 VA examiners specifically found that the Veteran did not have total occupational and social impairment due to PTSD symptoms. In his June 2018 affidavit, the Veteran indicated that he was still functional enough to work as a cashier, though with some difficulty, indicating there was not total occupational and social impairment due to his depression. Additionally, the Board finds that the content of the VA medical records is generally consistent with those made during VA examinations, including his April 2016 initial VA mental health evaluation. That record generally showed him as casually dressed and groomed; oriented to person, time, place, and situation; speech productive, coherent, and logical; thought process linear and goal oriented; judgment and insight intact; and no other symptoms of a formal thought disorder. There were no delusions or hallucinations or suicidal or homicidal ideation. Such findings are generally consistent with those made by the VA examiners and most of the other VA medical records. Given the consistency of the symptoms of record, and that the Veteran has not reported a worsening of symptoms since the last VA examination, the Board finds that sufficient evidence is of record to make a determination. The Board finds that the preponderance of the evidence of record, to include VA medical records and VA examination, generally do not demonstrate symptoms associated with the 100 percent evaluation, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Veteran has not shown gross impairment in thought process or communication; or disorientation to time or place or memory loss. Such problems were not found by the VA examiners or VA medical providers. Furthermore, VA medical providers, both for mental health and for general medical consistently found the Veteran mentally oriented, thought process logical and goal oriented, fair judgment, and able to communicate effectively. Such records similarly consistently reported that the Veteran could perform activities of daily living and did not neglect personal appearance or hygiene. The Veteran has not demonstrated grossly inappropriate behavior during the applicable appeal period. The Board notes that the Veteran has also not claimed that a disability rating higher than 70 percent may be warranted. In the June 2018 argument from his attorney, the attorney argued for a 70 percent disability rating, but no higher. With respect to the Veteran’s occupational functioning and impairment, the Board observes that the VA examinations, November 2016 VA vocational rehabilitation counselor, and VA medical records do not indicate total occupational and social impairment. His depression symptoms are of a similar severity, duration, and type as those associated with a 70 percent rating. The Board finds that these statements from the medical professionals are probative as to the issue of occupational and social impairment. Though the Veteran undoubtedly has had some severe symptoms, he has been generally able to function independently and has not demonstrated complete impairment. Overall, a disability rating of 70 percent, and no higher, is granted. 4. Entitlement to a TDIU. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran’s service connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. A Veteran will be entitled to a TDIU upon establishing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The Veteran is currently service-connected for major depressive disorder (70 percent), left knee disability (currently 60 percent), left shoulder disability (20 percent), right knee disability (10 percent), and noncompensable left knee surgical scar. He has also had temporary total evaluations, most recently from August 9, 2016, to August 31, 2017. He has otherwise had a combined 80 percent disability rating, and thus meets the minimum schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16(a). Per lay statements from the Veteran, such as his June 2018 affidavit, his service-connected disabilities cause severe pain and impacts sleep and focus. When he still worked as an educator, it led him to have absences and tardiness that led to his teaching contract not being renewed. The September 2016 VA mental health examiner noted that the Veteran had a superior range intellect and a PhD, with extremely valid depression and introversion scores, as well as scores suggesting apathy, lethargy, and possible psychic inertia. The November 2017 VA examination addendum provider found that the Veteran’s severe major depressive symptom would result in significantly reduced productivity and reliability in work setting, including due to problems with depression, impaired sleep, anxiety, slowed cognitive process, and anhedonia. The opinion further found that he would have significant difficulty working under deadlines/pressures, interacting effectively with others, and focusing attention and concentration, though he was alert and oriented with intact judgment. In a February 2018 private opinion, Dr. D. Miller found constant orthopedic pain of the left knee, worsened with physical activities, including standing for long periods of time. Dr. Miller noted that he was an orthopedic surgeon, not a mental health provider, but that he had directly observed emotional effects of chronic pain on a vast array of patients resulting in depression. He further opined that the Veteran was unable to secure and follow substantially gainful employment secondary to his depression from his service-connected left knee condition. Given the Veteran’s physical limitations due to his multiple service-connected physical disabilities, in conjunction with his severe depression, and his background, including educational history and past employment, and giving him the benefit of the doubt, the Board finds that his service-connected disabilities preclude most employment. The Board will allow the RO to assign the appropriate effective date when it implements the Board’s decision. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction, and special monthly compensation for loss of use of a creative organ, is remanded. The Veteran contends that he has erectile dysfunction as a side effect of his medication for his service-connected depression. Although a September 2017 VA examiner addressed the question of the cause of his erectile dysfunction, the examiner did not address whether it was aggravated by the Veteran’s depression medication. The Board cannot make a fully-informed decision on the issue and a VA medical opinion is necessary. Any unassociated VA medical records should be associated with the claims file. The matter is REMANDED for the following actions: 1. Any unassociated VA medical records should be associated with the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s erectile dysfunction is at least as likely as not proximately due to his medication for his service-connected depression or aggravated beyond its natural progression by such medication. The claims file should be reviewed, and a full rationale should be included. It is left to the examiner’s discretion whether to examine the Veteran. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio