Citation Nr: 18146551 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-37 879 DATE: October 31, 2018 ORDER Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the left knee is denied. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the right knee is denied. Entitlement to a rating of 70 percent for posttraumatic stress disorder (PTSD) with panic disorder is granted. FINDINGS OF FACT 1. The Veteran’s patellofemoral syndrome of the left knee has been manifested by pain with movement; flexion is limited to no less than 110 degrees, extension is full, and no ligamentous instability or meniscal involvement is noted. 2. The Veteran’s patellofemoral syndrome of the right knee has been manifested by pain with movement; flexion is limited to no less than 110 degrees, extension is full, and no ligamentous instability or meniscal involvement is noted. 3. The Veteran’s PTSD is manifested by social and occupational impairment in most areas with symptoms such as near-continuous panic or depression, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and an inability to establish and maintain effective relationships; total occupational and social impairment has not been shown during this period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of flexion due to patellofemoral syndrome of the left knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5260 (2018). 2. The criteria for a rating in excess of 10 percent for limitation of flexion due to patellofemoral syndrome of the right knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5260 (2018). 3. The criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1988 to October 1992. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). As is discussed further below, the Veteran continues to work full time, and so inference of a claim for total disability based on individual unemployability (TDIU) is not warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Neither the Veteran nor his representative have raised any issues with 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 duty to assist argument). Increased Schedular Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Board finds that based on the evidence, further staged increased ratings are not warranted. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. 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 for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Patellofemoral syndrome of the knees The Veteran contends he is entitled to a rating in excess of 10 percent for limitation of flexion, due to patellofemoral syndrome of the left knee, and a rating in excess of 10 percent for limitation of flexion, due to patellofemoral syndrome of the right knee. The Veteran’s patellofemoral syndrome of the left knee is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260 for limitation of flexion, effective March 11, 2011. The Veteran’s patellofemoral syndrome of the right knee is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260 for limitation of flexion, effective March 11, 2011. The rating decisions granting service connection and confirming and continuing the current 10 percent evaluations, make clear that there was no compensable limitation of range of motion, but the pain in the joints with motion warranted minimal compensation under 38 C.F.R. § 4.59. Multiple diagnostic codes are potentially applicable to evaluation of the knees. Simultaneous compensation under several Codes is permissible so long as differing symptomatology is being compensated by each Code. Limitations of flexion (Code 5260) and extension (Code 5261) may both be rated, but a rating for arthritis (Code 5003) cannot be combined with either, as it refers to general limitations of motion and would include both flexion and extension. Similarly, instability (Code 5257) and meniscal disabilities (Codes 5258 and 5259) can be rated with limits of motion, and with each other, so long as differing symptoms and manifestations are being compensated. VAOGCPREC 9-2004; VAOPGCPREC 23-97; VAOPGCPREC 9-98. All these potentially applicable Codes have been considered. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. The diagnostic criteria applicable to semilunar cartilage are found at 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017). Under that Code, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5259. At an April 2015 VA examination, the Veteran reported an increase in intermittent pain and stiffness, and pain with prolonged standing and walking. He further endorsed buckling, giving way, locking and swelling, but denied any hospitalization or surgery. No assistive device for locomotion was needed. Upon physical examination, the Veteran displayed 0 to 110 degrees of flexion, and 110 to 0 degrees of extension of the right knee. The VA examiner indicated that the Veteran exhibited pain on flexion and extension, tenderness to deep palpation at the patella region, and objective evidence of crepitus. The examination report noted no evidence of pain with weight bearing in the right knee. The Veteran displayed 0 to 110 degrees of flexion and 110 to 0 degrees of extension of the left knee. The Veteran exhibited pain on flexion and extension, tenderness to deep palpation at the patella region, and objective evidence of crepitus. The VA examiner further noted no evidence of pain with weight bearing in the left knee. On repetitive-use testing, the VA examiner indicated that the Veteran exhibited no additional functional loss or range of motion after three repetitions. The Veteran also had less movement than normal, disturbance of locomotion, and interference with standing. Muscle strength and joint stability testing were normal, and that the Veteran did not have ankylosis or muscle atrophy of either knee. The examination report noted that the Veteran did not have a history of recurrent subluxation, lateral instability, recurrent effusion, recurrent patellar dislocation, or a meniscus condition. An x-ray of the right knee performed during the evaluation identified no acute fractures or dislocation, and no significant osteoarthritis changes or suprapatellar effusion. The x-ray was assessed as unremarkable, while the examination report also referenced a March 2012 x-ray of the left knee that was reportedly normal. The VA examiner opined that the Veteran’s knee disabilities impact his ability to stand and walk for prolonged periods. Based on the evidence of record, the Board finds that no ratings under Codes 5258 and 5259 may be assigned. These apply specifically to signs and symptoms associated with meniscus injuries or damage, and such are not shown here, or alleged by the Veteran. Concerning instability under Code 5257, the Board finds no compensable evaluation is warranted. The Veteran has competently and credibly reported that he experiences giving way and buckling sensations, but objective examinations of the knees show no instability in the joints. The medical testing is more probative of the actual degree of impairment than the subjective complaints; while the Veteran can describe what he feels with regard to the knee, he lacks the knowledge and training to accurately describe the joint function. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In other words, what is felt may not actually reflect the actual condition or manifestation. Testing shows that while the Veteran feels unstable, the joint is actually solid; there is no evidence of actual collapse or falls to support the subjective complaints over the objective evidence. With regard to Codes governing limitation of motion, the Veteran’s knees show full and complete movement in extension. In flexion limitation is to 110 degrees bilaterally. Neither is compensable under Code 5260 or 5261. Movement is painful, however, and so a minimal 10 percent rating for each knee under 38 C.F.R. § 4.59 is warranted. No higher rating is merited unless the schedular criteria for such under Codes 52650 and/or 5261 are met. The Board has considered whether a 10 percent rating under 38 C.F.R. § 4.59 is required for flexion and for extension, but finds it is not. The regulation discusses “the joint” and not separate movements of the joint, similar to Code 5003, which cannot be combined with a joint-specific Code. 1. PTSD with Panic Disorder The Veteran contends he is entitled to a rating in excess of 50 percent for his PTSD with panic disorder. The Board finds that a rating of 70 percent, but no higher, for the entire period on appeal is warranted. In January 2015, VA outpatient treatment records indicate that the Veteran endorsed panic attacks, intrusive thoughts, and nightmares about his military experiences. He further reported a constant worry about his safety, and poor, interrupted sleep. The eeteran was afforded a VA examination for his PTSD in April 2015. The Veteran endorsed panic attacks at least once a week or more, frequent nightmares and intrusive thoughts of traumatic military experiences with psychological distress, attempts to stay busy to avoid thoughts and feelings associated with traumatic military memories, emotional numbing, anhedonia, difficulty feeling happy, avoidance of crowded and or noisy places, hypervigilance, frequent thoughts of his own death (but not suicide), frequent depressed mood, insomnia with frequent middle-night waking, frequent daytime fatigue, irritability, and a decline in self-esteem. Upon mental status examination, the Veteran further exhibited a dysthymic and apathetic mood, normal speech, thought content and process, and psychomotor activity, adequate judgment and insight, and no suicidal or homicidal ideations. The April 2015 VA examiner opined that the Veteran possesses an occupational and social impairment with reduced reliability and productivity. The VA examiner reported that the Veteran displayed depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. Subsequent VA outpatient treatment records dated February 2016 reflect that the Veteran endorsed panic attacks once to twice per week. Thereafter, VA outpatient treatment records document subsequent bi-monthly group therapy for PTSD through June 2016. In correspondence dated January 2017, the Veteran endorsed difficulties with his marriage and relationships with family members due to his PTSD. The Veteran further reported symptoms of anxiety and panic attacks, particularly in crowded, public places. He noted panic attack episodes occur two or three times per week. The Veteran also endorsed problems with his memory and concentration, and hypervigilance. In February 2017, the evidence of record reflects that the Veteran’s wife submitted a letter on behalf of the Veteran. She reported that the Veteran experiences panic attacks several times per week, does not participate in or attend public or family events, or travel. She further indicated that the Veteran has “paranoid” thinking, frequent nightmares, and misinterprets what is said. The Veteran’s wife further noted that the Veteran is “cool and remote, or angry” and has a short-temper and “snappy.” She described their home life as “walking on egg shells” and that she has considered divorce. The evidence of record also contains a statement by the Veteran’s work supervisor. He indicated that the Veteran’s work schedule is provided with the flexibility to attend mental health counseling sessions. It was further noted that the Veteran’s co-workers assist him with interaction with clients if the Veteran has a panic attack at work. The competent lay statements by the Veteran’s wife and work supervisor are corroborated by the Veteran’s reports and observations by treating VA sources during the period on appeal, and are therefore entitled to great probative weight. As such, based on the Veteran’s overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows his disability picture more nearly approximates the level of severity contemplated by a 70 percent rating for PTSD, which contemplates impairment in most areas, for the entire period of the appeal. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. While the severity of the Veteran’s PTSD rises to the level envisioned by the 70 percent rating threshold, the Veteran did not display a manifestation of symptoms with the severity, frequency, and duration comparable of a 100 percent disability rating. Statements submitted by the Veteran’s wife and work supervisor and April 2015 VA examiner collectively did not report 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, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Furthermore, the medical evidence of record does not reflect persistent suicidal plans or intent, a history of violence, or actual attempts of self-violence or violence towards others. Therefore, a total occupational and social impairment has not been shown. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Therefore, for the reasons stated above, the Board finds that a rating of 70 percent, but no higher, for the Veteran’s PTSD is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel