Citation Nr: 18141170 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 10-08 739 DATE: October 9, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to a rating in excess of 10 percent for a left knee disability based on limitation of flexion or extension is denied. Entitlement to a separate 20 percent rating, but no higher, for a left knee disability based on moderate recurrent subluxation and lateral instability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. The Veteran has a diagnosis of PTSD, which is corroborated by evidence of personal trauma due to assault while in service, and it is at least as likely as not that his PTSD is due to the personal trauma he experienced during service. 2. The Veteran’s left knee disability is manifested by painful motion but is not manifested by objective evidence of flexion limited to 30 degrees or less or extension limited to 15 degrees or more. 3. The Veteran’s left knee disability is manifested by objective evidence of moderate recurrent subluxation and lateral instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110; 3.303, 3.304. 2. The criteria for entitlement to a rating in excess of 10 percent for a left knee disability based on limitation of flexion or extension have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260, 5261. 3. The criteria for a separate 20 percent rating, but no higher, for a moderate recurrent subluxation and lateral instability of the left knee have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from May 1983 to May 1986. Regarding the Veteran’s claim of entitlement to service connection for PTSD, the Board notes that the Veteran requested a videoconference hearing on his VA Form 9. Although the Veteran has not been afforded the requested Board hearing, there is no prejudice to him in proceeding with a decision on this claim, as the Board is granting his claim in full and, as such, the outcome is entirely favorable to him. Concerning the Veteran’s claim of entitlement to a rating in excess of 10 percent for a left knee disability, the Veteran testified before a Veterans Law Judge (VLJ) in a videoconference hearing in October 2016. A copy of the hearing transcript is of record. The Veteran was notified by letter that the VLJ who held the hearing is no longer with the Board. He was informed that he could choose to have another hearing. No response was received; thus, the Board may appropriately proceed with adjudicating this claim. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim of entitlement to a TDIU will be considered to have been raised as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the Veteran’s former representative raised potential unemployability due to his service-connected disabilities, stating that his position at VA has been sheltered employment and that he would not be able to get work elsewhere. Therefore, the Board finds that the issue of entitlement to TDIU has been raised by the record. 1. Entitlement to service connection for PTSD The Veteran maintains that his PTSD is due to his period of service. Specifically, the Veteran asserts that his PTSD is due to an assault by a private that occurred while in service. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. If a PTSD claim is based on in-service personal assault, evidence from sources other than a Veteran’s service records may corroborate his account of the stressor incident. 38 C.F.R. § 3.304 (f)(5) (2017). Moreover, it is well established that if a PTSD claim is based on an in-service personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Turning to the evidence of record, the Veteran’s VA medical records and VA examinations from January 2015 and October 2016 indicate that the Veteran has been diagnosed with PTSD. Therefore, the Veteran has met the first element of service connection. Concerning the second element of service connection, an in-service event or injury, the Veteran maintains that he was assaulted by a private during service after he was promoted to a PFC in November 1983. When a private attempted to give him orders following his promotion, he refused, and the private then physically assaulted him. The Veteran wrote that he did not go to sick bay following the incident because he was young and a new Marine and did not know what documenting the event would mean for his career. He observes that he then began to drink heavily to cope with his feelings following the assault, which led to legal problems and work infractions. Military personnel records corroborate the date of the Veteran’s promotion as early November 1983, near the date of the alleged physical assault. The Veteran reported this event consistently and credibly to his VA mental health treatment providers and to VA examiners. He has also submitted lay statements in support of his claim, including from a friend who confirmed that the Veteran had related the story of the stressor to him, and a letter from his mother describing marked changes in his behavior from late November 1983 to the end of his service. The Board finds that this evidence taken together is highly probative and, resolving all reasonable doubt in favor of the Veteran, finds that the in-service event described by the Veteran occurred. With regard to the third element of service connection, a nexus, January 2015 and October 2016 VA examiners confirmed the PTSD diagnosis and determined that it was at least as likely as not that the Veteran’s PTSD was caused by the claimed in-service personal assault. The examiners reasoned that the Veteran described several changes around the time of the assault, including increased drinking, alcohol related charges and difficulties, work infractions, and distancing himself from family. They also observed that the Veteran detailed the same stressor he identified at that VA examination in other VA treatment records. The Board finds that the cumulative evidence of record suggests a positive nexus between the Veteran’s personal assault trauma stressor and his current diagnosis of PTSD. Moreover, the only medical opinions of record indicate a positive link. Therefore, the third element of service connection has been met and service connection is warranted. 2. Entitlement to a rating in excess of 10 percent for a left knee disability Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). 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. See Johnson v. Brown, 9 Vet. App. 7 (1996). Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, pertaining to limitation of leg extension, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. Id. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. The normal range of motion of the knee is from 0 degrees extension and flexion to 140 degrees. 38 C.F.R. § 4.71, Plate II. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings will be rated due to limitation of motion for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Precedential opinions of the VA’s General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 Fed. Reg. 59988 (2004)). The Veteran seeks a rating in excess of 10 percent for his service-connected left knee disability. He sought the increased rating in March 2009, and thus the Board must review all applicable evidence from March 2008 to the present. Turning to the evidence of record, the Veteran sought treatment for ongoing left knee pain that had worsened and was affecting his activities of daily living and ability to jog or exercise in April 2008. He stated that he wanted intervention to relieve pain. Upon physical examination, the examiner observed tenderness to palpation on the medial area. Cap refill was good and sensation was intact. Tinel’s sign was positive but Phalen’s sign was negative. Other studies performed at that time showed that the menisci, cruciate, and collateral ligaments were intact. Changes seen within the posterior horn on the meniscus were most likely related to degeneration. Patella and quadricep tendons were unremarkable. No chondromalacia or marrow signal abnormalities were observed. There was thickening of the lateral patellar retinaculum without tear. The medial retinaculum was normal. There were no soft tissue abnormalities. There was small volume joint effusion. The Veteran began getting therapeutic injections into his left knee to help with the pain from September 2008 to October 2008. A December 2008 VA treatment record indicates that they did not provide any relief and that he noticed increasing symptoms at the end of his shift at work. He stated that he had been going to the gym to do leg presses, but had to wear a confining knee brace. These aggravated his knee condition. Upon physical examination, the examiner found patellofemoral crepitus. The Veteran had full range of motion. There was tenderness observed in the medial/lateral patella. There was no effusion. The examiner found slightly lateral tracking in the Veteran’s patella. He was provided a VA examination in April 2009. The Veteran reported constant left knee pain that he rated as an 8/10 that traveled up to his hip. He stated that it could be elicited by physical activity and was sometimes relieved by rest and Diclofenac Sodium. He detailed symptoms such as weakness, stiffness, heat, giving way, lack of endurance, locking, and fatigability. He denied swelling, redness, or dislocation. The Veteran stated that he was never hospitalized nor did he have any surgical interventions. When asked about functional limitations, he stated that he could not drive long distances, jog, or play certain sports. He noted that he could not work any other jobs and was forced to give calls away at work because of the pain. Upon physical examination, the examiner noted that the Veteran had a slight limp favoring his left knee. Examination of his feet did not reveal any signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern. The left knee showed tenderness and healing contusion from fall. There were no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement. Flexion was to 110 degrees with pain at 85 degrees. Extension was -5 degrees with pain at -8 degrees. The anterior and posterior cruciate ligaments stability of the left knee was within normal limits and the medial and lateral collateral ligaments stability test of the left knee was within normal limits. The medial and lateral meniscus test of the of left knee was within normal limits. The examiner noted that for the established diagnosis of patellofemoral syndrome, left knee with osteoarthritis, there was no change. He noted that the condition was active and that the subjective factors include pain, weakness, stiffness, heat, giving way, lack of endurance, fatigability, and locking. The objective factors were markedly decreased flexion and extension with pain. A March 2010 VA treatment note shows that the Veteran felt a lot of popping and pain on the lateral side of his knee. On examination, the left patella easily subluxed laterally with flexing/extending the knee. Neurovascular was intact distally. There was no medial joint line tenderness. X-rays showed good joint space, no arthritis. The patella rode laterally in groove. The assessment was patella subluxation. A July 2010 VA physical therapy consult indicates a diagnosis of dislocation of the patella. The Veteran complained of his left knee buckling frequently. The examiner noted he walked with a limp. The range of motion in both knees was within functional limits. Gross strength in the left knee was 4/5. There was tenderness to palpation of the left knee medial joint line and left patellar tendon. The examiner noted that that Veteran would benefit from physical therapy to improve strength, flexibility of his left knee as he had positive lateral tracking of the left patella and crepitus of the left knee secondary to osteoarthritis. The Veteran testified at a March 2016 Decision Review Officer (DRO) hearing. He stated that he experienced instability in his left knee, had attended physical therapy, and took anti-inflammatories for the pain. He indicated that he stopped discussing it with his doctors because their only solution was surgery. He also testified before a VLJ in October 2016. He reiterated that he experienced pain and instability and that sometimes the instability has caused him to fall. A September 2016 VA note reflects that the Veteran continued to experience left knee anterior pain and grind and mild lateral subluxation. The examiner also noted tenderness to palpation over the quadrilateral tendon. The Veteran was diagnosed with patellofemoral syndrome and quadrilateral tendonitis. In May 2018, the Veteran underwent a VA examination. The examiner noted that the Veteran’s condition has progressed since its initial manifestation. The Veteran complained of constant daily pain, averaging a 7/10, that was now affecting his left hip. He reported frequent falls. He did not report any flare-ups. He stated that he was unable to do squats or leg presses or anything strenuous. He could not sit for long periods of time. Left knee flexion was to 105 degrees. Extension was to 0 degrees. Pain was noted on flexion and extension. There was objective evidence of moderate localized tenderness or pain on palpation of the joint over the lateral joint line and patella. There was evidence of pain with weightbearing and crepitus. The Veteran performed repetitive use testing and there was no loss of function or range of motion. The examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss over time. There was no pain, weakness, fatigability that significantly limited his functional ability with repeated use over time. The examiner noted no additional contributing factors to the disability. There was a slight reduction in muscle strength. There was no muscle atrophy or ankylosis observed. Joint stability testing was performed. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner noted that he previously had bilateral shin splints, but indicated that they did not affect the range of motion of either knee. No meniscal conditions or surgical procedures were noted. Occasional use of knee sleeves was noted. Upon review of the record, the Board finds that the evidence does not support a rating in excess of 10 percent for a left knee disability based on limitation of flexion. The Board notes that although the Veteran did not meet the minimum criteria for a compensable rating under Diagnostic Code 5260 because flexion was not limited to at least 60 degrees, the regional office nevertheless continued the 10 percent rating for the left knee based upon the Veteran’s reports of painful motion. See 38 C.F.R. § 4.59; DeLuca, supra. Throughout the period on appeal, the evidence does not suggest that the Veteran’s left knee disability is so disabling as to approximate the level of impairment required for the assignment of a rating in excess of 10 percent for flexion of the knee. During the appeal period, flexion of the left knee was limited to 105 degrees at worst. Therefore, a rating in excess of 10 percent based on limitation of flexion is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board also finds that an increased rating based on limitation of extension is also not warranted. Throughout the period on appeal, the evidence does not suggest that the Veteran’s left knee limitation of extension is so disabling as to approximate the level of impairment required for the assignment of a rating in excess of 10 percent for extension of the knee. Extension of the left knee was at worst to 5 degrees at the April 2009 VA examination. There is no medical evidence of record demonstrating limitation of extension of 15 degrees or more. Therefore, a rating in excess of 10 percent for left knee limitation of extension is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board has considered functional impairment due to the Veteran’s service-connected disability and acknowledges the subjective complaints of pain made throughout the course of the Veteran’s claim, as well as the objective evidence of pain on movement and reduced movement during range of motion testing. While the Veteran experiences pain, the Board finds that the 10 percent evaluation assigned for the left knee adequately portrays any functional impairment, pain, and weakness that the Veteran experienced as a result of use of his left knee. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Therefore, higher evaluations for the left knee disability based on functional loss are not warranted for the period on appeal. See DeLuca, 8 Vet. App. at 204-06. Regarding whether a separate rating for lateral instability or recurrent subluxation is warranted for the left knee, the Board finds that there is objective evidence of mild recurrent subluxation as demonstrated in March 2010 and September 2016 VA treatment notes and subjective evidence of lateral instability as the Veteran repeatedly reported feeling a buckling sensation and stated that he had fallen on more than once due to instability in his knee. He also reported the use of a knee brace. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that a separate 20 percent rating, but no higher, is warranted for the Veteran’s subluxation and instability. In reaching this conclusion, any reasonable doubt was resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. However, a higher, 30 percent rating for severe recurrent subluxation or lateral instability is not warranted because at no time has the Veteran’s subluxation and instability been described or approximated by a medical examiner as severe in nature, and it has also not been asserted by the Veteran. The Board has also considered whether the Veteran is entitled to any additional separate ratings for his left knee disability. The clinical evidence does not establish ankylosis, removal or dislocation of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application. Accordingly, the preponderance of the evidence is against the claim for ratings in excess of 10 percent for a left knee disability based on limitation of flexion or extension. However, resolving all reasonable doubt in favor of the Veteran, the Board finds that a separate 20 percent rating, but no higher, is warranted for left knee recurrent subluxation and instability for the period on appeal. REASONS FOR REMAND Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU has been raised under Rice. As a result, since it has been determined that a claim for TDIU is part of the Veteran’s increased rating claim, the Veteran must be sent a notification letter in compliance with 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b). Therefore, on remand the Veteran should be provided with proper notice of the evidence necessary to substantiate a claim of entitlement to TDIU. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After obtaining the necessary authorization from the Veteran, obtain and associate with the claims file any identified relevant private medical records. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159 (e). 3. Provide the Veteran with appropriate notice of VA’s duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bush