Citation Nr: 18152413 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 18-12 273 DATE: November 21, 2018 ORDER A rating in excess of 10 percent for right knee disability is denied. REMANDED Entitlement to service connection for left knee limitation of flexion as secondary to a right knee disability is remanded. Entitlement to service connection for dysthymic disorder and generalized anxiety disorder (GAD) is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s right knee limitation of flexion was manifested by, at worst, flexion limited to 90 degrees, and X-ray evidence of arthritic involvement. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right knee disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes (DCs) 5003-5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1971 to June 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board notes that where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 1. Entitlement to a rating in excess of 10 percent for right knee disability. The Veteran contends that his right knee degenerative joint disease had increased in severity and warrants a higher rating. The Board concludes that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for right knee disability. Neither the lay nor the medical evidence more nearly reflect the criteria for a higher rating during the appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.71a, DCs 5003-5260. The Veteran’s right knee disability is rated pursuant to DCs 5003-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. DC 5003 rates degenerative arthritis and states that the severity of degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion diagnostic code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Ratings under Diagnostic Code 5003 are not to be combined with ratings based on limitation of motion of the same joint. Under Diagnostic Code 5261, for limitation of knee extension, a 50 percent rating is to be assigned when extension is limited at 45 degrees; a 40 percent rating when limited at 30 degrees; a 30 percent rating when limited at 20 degrees; a 20 percent rating when limited at 15 degrees; a 10 percent rating when limited at 10 degrees; and a 0 percent rating when limited at 5 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, limitation of flexion to 60 degrees warrants a 0 percent rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Normal extension of the knee is to 0 degrees and normal flexion of the knee is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. A February 2017 private medical record indicated the Veteran reported chronic knee pain. He reported that he had pain with activities involving weightbearing and pain at rest. He stated he did not notice any significant swelling. He described a catching or mechanical sensation without frank locking or giving way. Upon examination, his gait was antalgic. His right knee had mild partial swelling, was positive for crepitus, had trace effusion, and had tenderness at the medical and lateral joint line. His range of motion was 3 degrees of extension to 120 degrees of extension. His meniscus and ligament examination was normal. His light touch sensation was intact. The private physician noted that a review of prior X-rays showed moderate to advancing degenerative arthritic changes in the right knee. No significant progression of the Veteran’s arthritis was noted. March 2017 private medical records indicated the Veteran had chronic knee pain. He underwent a viscosupplementation injection procedure. In May 2017, a VA examination of the Veteran’s right knee indicated that he had degenerative arthritis of the right knee, which was diagnosed in 1995. The Veteran reported that his condition had gotten worse and that over the prior 2 years his knee pain had increased and gotten to the point that his ability to climb and descend stairs was difficult and painful. He reported trouble standing from a sitting position and reported difficulty in sleeping due to knee pain and popping. He reported flare-ups of his condition, described as mostly occurring at night when he laid in bed or when sitting, standing, or driving for long periods of time. He reported his functional loss was that standing for long periods caused pain, as well as climbing being and sleeping being difficult. Upon examination, the Veteran’s right knee had flexion to 90 degrees and extension to 0 degrees. Pain was noted upon examination and caused functional loss. Flexion was noted upon examination to exhibit pain and there was objective evidence of localized tenderness or pain on palpitation. There was evidence of pain with weight-bearing and objective evidence of crepitus. Upon repetitive use testing, there was no additional loss of function or range of motion. Pain, weakness and fatigability significantly limited the Veteran’s functional ability with repeated use over time. The reduction in the Veteran’s range of motion of the right knee was found to be flexion limited to 70 degrees; there was no reduction of the Veteran’s extension. During a flare-up, pain, weakness, fatigability, and lack of endurance caused functional loss during a flare-up. The reduction in the Veteran’s range of motion of the right knee during a flare-up was found to be flexion limited to 70 degrees; there was no reduction of the Veteran’s extension. Swelling was an additional factor which contributed to the Veteran’s disability. The Veteran did not have a reduction in muscle strength or muscle atrophy. No ankylosis was found. There was no history of recurrent subluxation or lateral instability. There was no history of recurrent effusion and no joint instability was found. There was no patellar dislocation, shin splints, a meniscus condition, or any other tibial or fibular impairment. The Veteran did not use any assistive devices. Considering the foregoing, the Board finds that a rating of 10 percent for the Veteran’s right knee disability is the highest rating warranted for consideration of any limitation of motion, even considering functional loss due to pain and other factors. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, and as noted above, the Veteran’s right knee has shown range of motion which exceeded the minimal compensable standard throughout the period on appeal, even when considering the reduction of his flexion noted during a flare-up or after repetitive use testing. His worst estimated limitation of flexion was to 70 degrees. Furthermore, his worst extension was noted to be to 3 degrees in his 2017 private medical records. Thus, his private treatment record and his VA examination showed the Veteran to have near normal range of motion of his right knee. Based on the findings in the February 2017 private medical record and the May 2017 VA examination, the Veteran’s limitation of range of motion was at minimal levels, with flexion mainly at noncompensable degrees throughout the period on appeal. The Board notes that the Veteran’s award of a 10 percent rating for his limitation of flexion and knee pain under DC 5003-5260 was based on his subjective evidence of pain, degenerative arthritis, painful motion and limitation of flexion of his right knee along with X-ray evidence of degenerative arthritis. Even considering the Veteran’s complaints of pain and flare-ups, the Board finds that the severity of the Veteran’s right knee disability does not more nearly approximate a higher rating for either knee. As such, a rating in excess of 10 percent is not warranted as the Veteran does not have symptoms which would support such a finding. Other than the Veteran’s painful motion and use, there is no objective symptomology or limitation which would warrant a rating in excess of 10 percent for either his right knee throughout the period on appeal. While the Board is aware of and sympathetic to the Veteran’s complaints of pain, stiffness, and weakness, and reports of swelling, those symptoms are not shown by competent, objective evidence to be so disabling as to warrant the next higher 20 percent rating for limitation of flexion or extension under DCs 5260 or 5261. In this case, there is no objective, quantifiable evidence of additional range of motion loss due to pain on use, as alleged by the Veteran, that would equate to functional limitation to the extent that a higher rating was warranted under Diagnostic Code 5260 and/or Diagnostic Code 5261. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). With regard to whether the Veteran is entitled to a rating higher than 10 percent under DC 5003 for arthritis, the Board concludes that he is not. Under DC 5003, a 20 percent rating is not warranted unless X-ray evidence shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The knee is considered a major joint. 38 C.F.R. § 4.45. Accordingly, the Board finds that the Veteran is not entitled to a rating greater than the current 10 percent rating under that diagnostic code. That remains the highest rating warranted even considering functional loss due to pain and other factors. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds the May 2017 VA examiner’s medical opinion highly probative to the issue of the severity of the Veteran’s right knee disability. Specifically, the examiner interviewed the Veteran and conducted a physical examination. Moreover, the examiner had the requisite medical expertise and had sufficient facts and data on which to base the conclusions. As such, the Board accords the VA examination opinion great probative weight. Additionally, the Board has considered the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), addressing 38 C.F.R. § 4.40. In this case, the Board finds the musculoskeletal examinations of record are adequate for rating purposes and that a higher disability rating is not warranted based on limitation of motion, even when considering the functional effects of pain, to include during flare-ups and after repetitive use. The Board finds that VA examination reports do not suggest that the objective findings on examination, in terms of ROM, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record, to include the Veteran’s lay statements. Specifically, the May 2017 examiner found that the additional loss of flexion of the Veteran’s right knee resulted in flexion limited to 70 degrees, which is still well above the 30 degree limitation necessary to warrant a rating in excess of 10 percent. As such, further examination or opinion is unnecessary to decide the claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board has also considered the statements submitted by the Veteran in support of the claim, specifically that his functional capacity is limited beyond what is set forth in his current rating criteria. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses – such pain, swelling, and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The identification of a knee disability and the determination of the range of motion of the knee require medical expertise that the Veteran has not shown he possesses. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran’s right knee disability has been provided by the medical personnel who examined him and who have made pertinent clinical findings in conjunction with the examinations. The medical findings, as provided in the examination report, directly addressed the criteria under which his disability was rated. The Board finds that evidence is the most persuasive and outweighs the Veteran’s statements in support of his claim. The Board has also considered if any other ratings are appropriate under any other DC. However, the medical evidence of record, including the February 2017 private medical report and the May 2017 VA examination, establish that no such separate award is supported by the record. There is no indication that the Veteran had ankylosis, so a rating under DC 5256 is not warranted. The Veteran was also not found to have any recurrent subluxation or lateral instability which would warrant a rating pursuant to DC 5257. Similarly, the medical evidence is against assigning any ratings under, DC 5262 (impairment of tibia and fibula), or DC 5263 (genu recurvatum). Finally, though the Veteran did have reports of mild effusion and swelling in his February 2017 private medical record, there is no evidence that the Veteran underwent a meniscectomy of the right knee, so there is no evidence that the Veteran’s right knee had symptomology associated with the cartilage of his right knee. Thus, separate awards for a condition of the right knee pursuant to either DC 5258 or 5259 is not supported by the evidence of record. The Board accepts that the Veteran is competent to report his symptoms. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation than now assigned, as explained and discussed above. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND In regard to the Veteran’s claim for service connection for his left knee disorder as secondary to his service connected right knee disability, the Board notes that a May 2017 examination found the Veteran’s left knee disorder was less likely than not proximately due to or the result of or secondary to the Veteran’s service connected right knee disability. However, the May 2017 VA examiner’s opinion did not address whether the Veteran’s left knee disorder was aggravated by his right knee disability. Pursuant to 38 C.F.R. § 3.310, a disability which is proximately due to or the result of a service-connected disease shall be service connected, to include based on aggravation. See also Allen v. Brown, 7 Vet. App. 439 (1995). Thus, the Board finds the May 2017 VA examination inadequate for adjudication purposes insofar as the claim for service connection of the Veteran’s left knee disorder as secondary to his right knee disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet. App. 1 (2001). In regard to the Veteran’s claim for service connection for his mental health disorder, a March 2017 private examination report stated that the Veteran’s current mental health diagnosis was dysthymic disorder and GAD. The examiner noted that the Veteran had been involved in a MASH unit while on active duty and that his anxiety started then. However, the March 2017 private examination did not indicate if the Veteran’s currently diagnosed mental health disorders were more likely than not related to his active duty service. The Board notes that the Veteran has not been afforded a VA examination to determine the etiology of his mental health diagnoses. After review of the claims file, and in specific consideration of the March 2017 private mental health examination, the Board finds that there is sufficient evidence to warrant a VA examination for the Veteran’s claim for service connection for an acquired psychiatric disorder, to include GAD and/or dysthymic disorder. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, remand is warranted in order to schedule the Veteran for an appropriate VA examination in accordance with McClendon. Furthermore, the March 2017 private records indicate that the Veteran was treating for his diagnosed mental health disorders. However, a complete copy of these treatment records, if such records exist, are not associated with the Veteran’s file. Accordingly, a copy of these records should be sought and associated with the Veteran’s file. The matters are REMANDED for the following action: 1. Obtain any relevant outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for medical providers from whom he has obtained relevant treatment for his claimed disorders, specifically Dr. E.W.H., at G.P.C. Make two requests for the authorized records from any identified sources, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA medical examination to determine the nature and etiology of his left knee disorder. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in his/her report whether such was reviewed. All necessary tests and studies should be accomplished. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disorder had onset in service or within one year following separation from service, or was causally related to service; or was caused or aggravated (worsened beyond its natural progression) by his service-connected right knee disability. The examiner must provide a complete rationale on which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. The Veteran’s lay assertions as to onset and continuity and symptomatology should be recorded and considered. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. The examiner should note that the term “aggravated by” refers to a chronic or permanent worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. 4. Schedule the Veteran for an appropriate VA medical examination to determine the nature and etiology of any diagnosed acquired psychiatric disability, dysthymic disorder and/or GAD. The claims file, including a copy of this Remand, must be made available to the examiner. All necessary tests and studies should be accomplished. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed acquired psychiatric disorder, including dysthymic disorder or GAD, had onset in service or within one year following separation from service, or was causally related to service. The examiner must provide a complete rationale on which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. The Veteran’s lay assertions as to onset and continuity and symptomatology should be recorded and considered. The examiner is asked to specifically address the March 2017 private medical report which indicated the Veteran had dysthymic disorder and GAD and his anxiety began in-service. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel