Citation Nr: 18147091 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-16 599 DATE: November 2, 2018 ORDER Service connection for depression secondary to service connected left knee disability is granted. An evaluation in excess of 20 percent for left lower extremity (LLE) peroneal nerve disability is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for left knee instability is remanded. Entitlement to an evaluation in excess of 10 percent for left knee disability with limitation of flexion is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving benefit of doubt in the Veteran’s favor, her psychiatric disorder diagnosed as depression is aggravated beyond its natural progression by her service-connected left knee disability. 2. The Veteran’s LLE nerve disability is not more nearly manifested by severe incomplete paralysis. CONCLUSIONS OF LAW 1. Resolving all doubt in favor of the Veteran, the criteria for service connection for depression are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.306, 3.310(a). 2. The criteria for an evaluation in excess of 20 percent for LLE peroneal nerve disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.27, 4.124a, DC 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to May 1983 in the United States Army. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA). 1. Entitlement to service connection for depression, to include as secondary to service connected left knee disability. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected disability by a service-connected disability is also service-connected. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. 3.306. The questions for the Board include the following: 1) whether the Veteran’s depression was incurred in or caused by military service; and 2) whether the Veteran has a pre-existing depression disability that was aggravated beyond its natural progression due to service or a service connected disability. The probative evidence of record includes a March 2012 opinion by Dr. JL, a May 2012 opinion by Dr. RS, the Veteran’s lay statements and buddy statements from her daughter, and VA examinations from February 2011 and February 2016. The VA examinations of record indicate that the has a current diagnosis of unspecified depressive disorder. A review of her medical history indicates that she had a pre-existing history of depression and relationship discord as well as a history of physical abuse. Her service treatment records did not indicate any treatment for depression or associated symptoms. There is no indication that her depression was “caused” by her military service. Dr. JL and Dr. RS opined that it is at least as likely as not that the Veteran’s pre-existing depression was worsened due to pain (i.e. aggravated beyond its natural progress) by her service-connected knee disability as treatment involved long-term chronic pain, which is associated with depression. The Board acknowledges that the February 2011 and February 2016 VA examiners opined that it is less likely than not that the Veteran’s depression was caused or aggravated by her left knee disability. The examiners stated that it would resort to mere speculation to opine as to whether the Veteran’s depression was due to her service connected disabilities or whether it was aggravated by her service connected left knee disability. The Board finds that service connection for depression secondary to a left knee disability is warranted. The Veteran has suffered from chronic pain since injuring her left knee in service. While she did not seek mental health treatment until years after service, she dealt with increasing pain and reduced efficacy in pain management using medications. All of the cited medical opinions of record are probative as (1) the testimony was based upon sufficient facts or data, (2) the testimony was the product of reliable principles and methods and (3) the expert witnesses applied the principles and methods reliably to the facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, the Board finds the medical opinions from Drs. JL and RS are especially probative in that both clinicians have been treating the Veteran for years and have witnessed the progression of her depression. They noted the impact of long-term pain management on her mood and opined that “there is a causal relationship between pain and depression.” While the Board finds that there are conflicting medical opinions, it finds that, affording the Veteran the benefit of doubt, the evidence is at least in equipoise that her pre-existing depression was aggravated beyond its natural progression due to her service connected left knee disability. As such, the Board finds that service connection for depression is warranted. Accordingly, the claim is granted resolving all doubt in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.310(b). 2. Entitlement to an evaluation in excess of 20 percent for left leg peroneal nerve disability. The Veteran contends that her left knee disability is more severe than the evaluation she is currently assigned. In an August 2010 correspondence, she endorsed that her Reflex Sympathetic Dystrophy (RSD) of the left knee has gotten progressively worse. She noted that she has had to quit many of the things she enjoyed doing, such as horseback riding. The Veteran endorsed that her pain medications do not control her symptoms as well as before and she has begun experiencing more severe pain. The Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent for left leg nerve disability. Neither the lay nor the medical evidence more nearly reflects the severe incomplete paralysis of the left leg peroneal nerve. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 38 C.F.R. § 4.124a, DC 8521. Under Diagnostic Code 8521, a 10 percent evaluation is warranted for mild paralysis of the peroneal nerve (external popliteal), a 20 percent disability rating is warranted for moderate incomplete paralysis of the peroneal nerve; and a 30 percent disability rating is warranted for severe incomplete paralysis of the external peroneal nerve. See 38 C.F.R. § 4.124a, Diagnostic Code 8521. Descriptive words “slight,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. Id. A February 2016 VA examination reflects mild incomplete paralysis of the superficial peroneal nerve. Objectively, there was decreased sensation of the lower leg/ankle, but essentially no other abnormal findings. There was normal gait, muscle strength, and reflexes. A higher rating requires the functional equivalent of severe incomplete paralysis, which is not shown here. While the Veteran is competent to report that her disability is worse than presently evaluated, neither the lay nor the medical evidence shows her that left lower extremity nerve disorder more nearly approximates the criteria for a higher evaluation. Whether a disability meets the schedular criteria for the assignment of a higher (or separate) evaluation is a factual determination by the Board based on both the complaints coupled with the medical evidence. Here, although the Veteran believes she meets the criteria for a higher disability rating, her complaints and the medical findings do not meet the schedular requirements for the higher rating. The February 2016 VA examination findings, prepared by a skilled, neutral medical professional, are more probative of the degree of disability. Here, the medical evidence preponderates against a finding of severe incomplete paralysis or worse of the involved nerve. The Board further finds that a higher or separate disability evaluation is not warranted under any other potentially applicable provision of the rating schedule-and notably a higher rating is not available by changing the Diagnostic Code assigned for external popliteal nerve involvement. See 38 C.F.R. § 4.124a, Diagnostic Codes 8521, 8621, and 8721. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). As the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007).   REASONS FOR REMAND 3. Entitlement to an evaluation in excess of 10 percent for left knee disability with lateral instability. 4. Entitlement to an evaluation in excess of 10 percent for left knee disability with limitation of flexion. In view of a the February 2018 Disability Benefits Questionnaire submitted by the Veteran, showing left knee pain with weight bearing, and considering Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the Board finds that remand for another VA examination of the left knee disability is necessary to ensure that VA has met its duty to assist. It is noted that, in Correia, the Court of Appeals for Veterans Claims held that to be adequate a VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In this case, the most recent report of VA examination does not reflect the necessary testing or findings. Therefore, remand is necessary for a new VA examination. 5. Entitlement to TDIU. In March 2018, VA received a claim for TDIU. The matter has not been developed or adjudicated by the RO in the first instance. Because the claim is part-and-parcel of a claim for increase, the Board has added the issue to the appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for an examination of the current severity of her left knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to [insert increased rating disability] alone and discuss the effect of the Veteran’s left knee disability on her ability to perform tasks associated with occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Conduct appropriate development on the claim for TDIU, including requesting employment information from the Veteran’s most recent employers. (Continued on the next page)   4. Adjudicate the matters remanded. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel