Citation Nr: 18152814 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-01 906 DATE: November 27, 2018 ORDER Entitlement to a rating in excess of 10 percent for patellofemoral syndrome right knee (right knee condition) is denied. Entitlement to a rating in excess of 10 percent for residual meniscus tear left knee (left knee condition) is denied. REMANDED Entitlement to service connection for gallbladder removal, also claimed as gallstones, to include as secondary to service-connected bilateral knee conditions is remanded. Entitlement to service connection for gastroesophageal reflux claimed as acid reflux, to include as secondary to service-connected bilateral knee conditions is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder and depression, to include as secondary to service-connected bilateral knee conditions is remanded. Entitlement to service connection for vitiligo as secondary to an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right knee condition is manifest by pain and limitation of motion. 2. The Veteran’s left knee condition is manifest by pain and limitation of motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a right knee condition have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.59, 4.71a, Diagnostic Codes 5024, 5260 (2017). 2. The criteria for entitlement to a rating in excess of 10 percent for a left knee condition have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.59, 4.71a, Diagnostic Codes 5299-5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1999 to August 2003. Neither the Veteran nor her attorney 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 a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when 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). Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 1. Entitlement to a rating in excess of 10 percent for a right knee condition The Veteran contends that an increased rating is warranted for her right patellofemoral pain syndrome, which is rated 10 percent disabling under Diagnostic Code 5024, which in turn requires the disability to be rated as limitation of motion or arthritis. In this case, the Veteran does not have arthritis documented by x-ray and therefore Diagnostic Code 5003, which governs arthritis, is not warranted. Under Diagnostic Code 5260, limitation of flexion of the leg, a noncompensable evaluation is warranted when flexion is limited to 60 degrees. A 10 percent evaluation is warranted when flexion of the leg is limited to 45 degrees. A 20 percent evaluation is warranted when flexion is limited to 30 degrees. A 30 percent evaluation is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a (2017). Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II (2017). The Veteran’s 10 percent rating is assigned based on painful limited motion. 38 C.F.R. § 4.59 (2017). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). A July 2013 VA treatment report documents a complaint of bilateral knee pain, right greater than left. She stated that the pain had been intermittent but over the last several weeks had gotten worse. She stated that she had difficulty straightening both knees and walking up stairs. She stated that there was no swelling, giving way, or locking. It was noted that her x-rays were normal. Upon examination, there was no edema or joint effusion in either knee. There were no obvious varus or valgus abnormalities. She had considerable guarding with flexion and extension of both knees. Joint stability tests were normal. The examiner diagnosed bilateral patellofemoral syndrome and recommended physical therapy. In August 2013, the Veteran underwent a VA examination. At that examination, the Veteran reported increased pain and decreased mobility with daily pain at a seven on a scale of 1 (least painful) to 10 (most painful). In addition to daily pain, the Veteran reported flare-ups that occur three times a week that last all day. During a flare-up, the Veteran is not able to use the stairs in her home. The examiner found the Veteran to have right knee flexion to 130 degrees with pain at 125 degrees, and normal extension without pain. There was no change in her ranges of motion after repetitive use. The examiner noted crepitus with palpation of patella. The Veteran presented functional loss in the following: less movement than normal; weakened movement; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight-bearing. The Veteran did not have tenderness or pain to palpation for joint line or soft tissues of the knee. When tested, she had normal muscle strength and stability. The Veteran did not present evidence or history of recurrent patellar subluxation/dislocation. She identified that she has previously had a meniscal tear and has frequent episodes of joint pain. During flare-ups, the Veteran uses over-the-counter ACE bandages. Upon diagnostic testing, degenerative or traumatic arthritis was not documented. The Veteran had an MRI in August 2013. It showed some cartilage irregularity to the knee cap and the inside part of the knee. The ligaments and meniscus were okay. The examiner found no major abnormality to the knee, just irritation of the lining of the knee. Based on the lay and medical evidence, a rating in excess of 10 percent is not warranted under Diagnostic Code 5260, because the Veteran’s right knee condition is not more closely approximated by flexion limited to 30 degrees or less, even when considering functional impairments described in the July 2013 VA treatment report or at her August 2013 VA examination. The Veteran is competent to report right knee pain and describe her observable symptoms. Her statements are credible, and are consistent with the 10 percent rating assigned, as she describes painful, limited motion of her left knee. The Veteran’s disability picture is not more closely approximated by an increased rating based on the presence of additional functional loss based on the criteria set forth 38 C.F.R. §§ 4.40, 4.45, and the holdings in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Since the Veteran already receives a 10 percent disability rating for limitation of motion and pain, 38 C.F.R. § 4.59 is not applicable. A Veteran who has instability of a knee may be rated separately under Diagnostic Code 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998). Under Diagnostic Code 5257, a 10 percent evaluation is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent evaluation is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2017). In July 2013, the Veteran denied experiencing her right knee give way. At her August 2013 VA examination, she did not report instability or subluxation and her right knee was stable during clinical testing. She did not provide lay evidence describing instability. The evidence is against a separate rating for right knee instability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. A separate rating is also available for limitation of extension under Diagnostic Codes 5261. VAOPGCPREC 9-2004 (2004). In this case, the Veteran’s right knee disability may not be rated as compensable loss of extension. Under Diagnostic Code 5261, limitation of extension of the leg, a noncompensable (0 percent) rating is warranted when extension is limited to 5 degrees. A 10 percent rating is warranted when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. 38 C.F.R. § 4.71a. Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II. In July 2013, the Veteran reported painful extension, but range of motion testing was not conducted by the treatment provider. The August 2013 VA examination showed that the Veteran has normal extension upon examination of her right knee without pain. Even though she credibly reported pain in July 2013, limited extension is not shown. As she does not have limitation of extension, a compensable rating under Diagnostic Code 5261 is not warranted. Because she does not have limitation of extension, application of 38 C.F.R. § 4.59 is not applicable. The VA examiner stated that the Veteran had a right knee meniscus tear. Rating a knee disability under Diagnostic Code 5260 does not, as a matter of law, preclude the assignment of a separate rating for a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, or vice versa. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. This is the only evaluation available under Diagnostic Code 5258. These criteria are conjunctive, not disjunctive; all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); see also Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013) (if disability rating criteria are written in the conjunctive, “a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation” and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria). In this case, the examiner noted that she had pain due to her meniscus condition, but she did not have locking or effusion. Therefore, consideration of Diagnostic Code 5258 is not warranted. Other Diagnostic Codes relating to the knee are Diagnostic Code 5256 for ankylosis, Diagnostic Code 5262 for impairment of tibia and fibula, Diagnostic Code 5259 for removal of semilunar cartilage, and Diagnostic Code 5263 for genu recurvatum. Those conditions are not shown on examination, or in the medical evidence of record, and the Board finds that application of these Diagnostic Codes is not warranted. 38 C.F.R. § 4.71a. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran’s right knee disability does not more closely approximate a higher rating under the applicable Diagnostic Codes or a separate disability rating. 2. Entitlement to a rating in excess of 10 percent for a left knee condition The Veteran contends that an increased rating is warranted for her residual meniscus tear of left knee, which is rated 10 percent disabling under Diagnostic Code 5299-5260. Because her x-rays do not document arthritis, Diagnostic Code 5003 is not for application. As discussed above, the Veteran sought VA treatment for her knee symptoms in July 2013. In August 2013, the Veteran underwent a VA examination. At that examination, the Veteran reported increased pain and decreased mobility with daily pain at a seven on a scale 1 to 10. In addition to daily pain, the Veteran reported flare-ups that occur three times a week that last all day. During a flare-up, the Veteran is not able to use the stairs in her home. The examiner found the Veteran to have left knee flexion to 130 degrees with pain at 125 degrees, and normal extension without pain. There was no change in range of motion after repetitive testing. The examiner noted crepitus with palpation of patella. The Veteran presented functional loss in the following: less movement than normal; weakened movement; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight-bearing. The Veteran did not have tenderness or pain to palpation for joint line or soft tissues of the knee. She had normal muscle strength and stability. The Veteran did not present evidence or history of recurrent patellar subluxation/dislocation. She identified that she has previously had a meniscal tear of the right knee, not the left. During flare-ups, the Veteran uses over-the-counter ACE bandages. Upon diagnostic testing, degenerative or traumatic arthritis was not documented. Based on the lay and medical evidence, a rating in excess of 10 percent is not warranted under Diagnostic Code 5260 because the Veteran’s left knee condition is not more closely approximated by flexion limited to 30 degrees or less, even when considering functional impairments described at her treatment in July 2013 and at her VA examination. The Veteran is competent to report right knee pain and describe her observable symptoms. Her statements are credible, and are consistent with the 10 percent rating assigned, as she describes painful, limited motion of her left knee. The Veteran’s disability picture is not more closely approximated by an increased rating based on the presence of additional functional loss based on the criteria set forth 38 C.F.R. §§ 4.40, 4.45, and the holdings in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Since the Veteran already receives a 10 percent disability rating for left knee limitation of motion and pain, 38 C.F.R. § 4.59 is not applicable. A separate rating for instability under Diagnostic Code 5257 is not warranted because she has not provided lay evidence of instability and her left knee was stable upon clinical testing. In July 2013, the Veteran reported painful extension, but range of motion testing was not conducted by the treatment provider. The August 2013 VA examination showed that the Veteran has normal extension upon examination of her left knee without pain. Even though she credibly reported pain in July 2013, limited extension is not shown. As she does not have limitation of extension, a compensable rating under Diagnostic Code 5261 is not warranted. Because she does not have limitation of extension, application of 38 C.F.R. § 4.59 is not applicable. Other Diagnostic Codes relating to the knee are Diagnostic Code 5256 for ankylosis, Diagnostic Code 5262 for impairment of tibia and fibula, Diagnostic Codes 5258 and 5259 for symptomatic dislocation or removal of semilunar cartilage, and Diagnostic Code 5263 for genu recurvatum. Those conditions are not shown on examination, or in the medical evidence of record, and the Board finds that application of these Diagnostic Codes is not warranted. 38 C.F.R. § 4.71a. As noted above, the Veteran’s meniscus tear was in her right knee, not her left. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran’s left knee disability does not more closely approximate a higher rating under the applicable Diagnostic Codes or a separate disability rating. REASONS FOR REMAND 1. Entitlement to service connection for gallbladder removal, to include as secondary to service-connected bilateral knee conditions is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for gallbladder removal, to include as secondary to service-connected bilateral knee conditions because no VA examiner has opined whether the Veteran’s service-connected bilateral knee conditions aggravated her gallbladder condition. In April 2013, the Veteran contended that the medications she takes for her service-connected knee conditions (Motrin 800 mg and naproxen 500mg) were the cause of her gallbladder removal. A secondary service connection claim has two prongs: causation and aggravation. 38 C.F.R. § 3.310 (2017). To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. Atencio v. O’Rourke, 30 Vet. App. 74 (2018). The August 2013 VA examiner gave a negative opinion for secondary service connection; however, the examiner’s rationale did not address aggravation. Therefore, the opinion is inadequate and another opinion is needed. 2. Entitlement to service connection for gastroesophageal reflux, to include as secondary to service-connected bilateral knee conditions is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for gastroesophageal reflux claimed as acid reflux, as secondary to service-connected bilateral knee conditions because no VA examiner has opined whether the Veteran’s service-connected bilateral knee conditions aggravated her gastroesophageal reflux claimed as acid reflux. In April 2013, the Veteran contended that the medications she takes for her service-connected knee conditions (Motrin 800 mg and naproxen 500mg) were the cause of her reflux. This contention must be addressed. The September 2013 VA examiner gave a negative opinion for secondary service connection; however, the examiner’s rationale did not address aggravation. Therefore, the opinion is inadequate and another opinion is needed. 38 C.F.R. § 3.310; see also Atencio, 30 Vet. App. 74. 3. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected bilateral knee conditions is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected bilateral knee conditions because no VA examiner has opined whether the Veteran’s service-connected bilateral knee conditions aggravated her acquired psychiatric disorder. The August 2013 VA examiner stated that the Veteran’s PTSD is less likely than not related to the stress of her service experience and did not address aggravation. The September 2013 VA examiner stated that the Veteran’s PTSD is more likely than not related to her history of sexual abuse, but did not adequately address secondary service connection. The September 2013 VA examiner specifically disagreed with the opinion of the August 2013 examiner. Therefore, another opinion is needed to address secondary service connection and to reconcile the conflicting medical opinions. 4. Entitlement to service connection for vitiligo as secondary to an acquired psychiatric condition is remanded. Because a decision on the remanded issue of entitlement to service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to service connection for vitiligo as secondary to an acquired psychiatric condition, the issues are inextricably intertwined. A remand of the claims for entitlement to service connection for vitiligo as secondary to an acquired psychiatric condition is required. 5. Entitlement to a TDIU is remanded. Finally, because a decision on the referred issues of entitlement to service connection for gallbladder removal, gastroesophageal reflux, an acquired psychiatric disorder, and vitiligo as secondary to an acquired psychiatric condition could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to a qualified clinician to provide an addendum opinion regarding her gallbladder removal. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s gallbladder removal was proximately due to or the result of her service-connected bilateral knee conditions or the medication she takes for them. b. Whether it is at least as likely as not that the Veteran’s gallbladder removal was aggravated beyond its natural progression by her service-connected bilateral knee conditions or the medications she takes for them. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Provide the Veteran’s claims file to a qualified clinician to provide an opinion regarding her gastroesophageal reflux. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s gastroesophageal reflux was proximately due to or the result of her service-connected bilateral knee conditions or the medication she takes for them. b. Whether it is at least as likely as not that the Veteran’s gastroesophageal reflux was aggravated beyond its natural progression by her service-connected bilateral knee conditions or the medications she takes for them. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Provide the Veteran’s claims file to an appropriate clinician to provide an opinion regarding her acquired psychiatric disorder. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only necessary if deemed so by the examiner. The examiner must provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder began during active service or is related to her active service. In providing this opinion, the examiner must address the conflicting findings of the August 2013 and September 2013 VA examiners. b. Whether it is at least as likely as not that the Veteran’s acquired psychiatric disorder was proximately due to or the result of her service-connected bilateral knee conditions. c. Whether it is at least as likely as not that the Veteran’s acquired psychiatric disorder was aggravated beyond its natural progression by her service-connected bilateral knee conditions. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page)   4. Then readjudicate the issues on appeal, including the issues of entitlement to service connection for vitiligo as secondary to an acquired psychiatric condition and entitlement to a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and her attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel