Citation Nr: 18154738 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-33 941 DATE: December 4, 2018 ORDER A rating in excess of 20 percent for left knee disability prior to December 12, 2016 and in excess of 10 percent thereafter is denied. A rating in excess of 10 percent for right knee disability is denied. A rating in excess of 10 percent for gastroesophageal reflux (GERD) is denied. A rating in excess of 50 percent for a depressive disorder is denied. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran’s limitation of motion in his left knee has been at a noncompensable level, with pain noted on movement without causing sufficient functional loss or having sufficient evidence of other symptoms to support a rating higher than 10 percent, or to warrant a separate compensable rating. 2. Throughout the entire appeal period, the Veteran’s limitation of motion in his right knee has been at a noncompensable level, with pain noted on movement without causing sufficient functional loss or having sufficient evidence of other symptoms to support a rating higher than 10 percent, or to warrant a separate compensable rating. 3. The Veteran’s GERD does not result in considerable impairment of health. 4. The Veteran’s overall psychiatric symptomatology has not been shown to cause occupational and social impairment with deficiencies in most areas, or worse. CONCLUSIONS OF LAW 1. The criteria for a higher rating for a left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256-63. 2. The criteria for a rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-63. 3. The criteria for a rating in excess of 10 percent for GERD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7346. 4. The criteria for a rating in excess of 50 percent for depressive disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1988 to July 1998. Increased Rating Knees In September 2013, the Veteran filed a claim seeking an increased rating for his left knee and right knee disorders. His left knee disability is rated at 20 percent prior to December 12, 2016 and 10 percent thereafter under Diagnostic Code (DC) 5003-5260, his right knee is rated at 10 percent under DC 5260. He is seeking higher ratings for his knee disabilities. In May 2014, the Veteran was afforded a VA examination, at which he reported progressive worsening of bilateral knee pain. He reported having received steroid injections in his right knee which provided temporary relief. On examination, he demonstrated knee flexion to 115 degrees and extension to 0 degrees bilaterally, with painful motion noted on flexion bilaterally. Range of motion after three repetitions showed additional limitation of flexion to 105 degrees bilaterally but no additional limitation of extension. The examiner estimated that pain and fatigue on use of knees could be expected to cause an additional 10 degrees loss of flexion bilaterally with repetitive use or during flare-ups. The Veteran had reduced muscle strength at 4/5 bilaterally. Joint stability tests showed no evidence of instability in either knee. The examiner noted no evidence or history of recurrent patellar subluxation or dislocation in either knee, no tibial or fibular impairment. Imaging studies of the knee showed arthritis in both knees, but without evidence of patellar subluxation or other significant diagnostic findings. At the November 2016 Decision Review Officer (DRO) hearing, the Veteran testified that his knees slipped, locked or popped almost every day and he had to wear braces to stabilize his knees. He testified that he had knee pain bilaterally and had to use injection to relieve the pain. He reported that he had to stop the physical therapy on his knees due to pain and swelling. He reported that his left knee condition was a little bit worse than his right knee. To further investigate the Veteran’s knee conditions, he was afforded another VA examination in December 2016 at which the Veteran reported that he had knee pain almost every day and swelling 1-2 times a week after activities; that he had received a steroid injection about 3 weeks earlier; that he had no falls but knees occasionally gave way almost causing falls; that he had occasional unpredictable locking in each knee which happed about once a week; that he had daily crepitus and stiffness but no flare-ups. The examiner noted that the Veteran had an arthroscopy procedure in left knee in 1996 for reported debridement of ACL degeneration, but no history of definite ACL rupture or reconstruction or any meniscus injuries found at that time or afterwards, and no further surgical interventions since the 1996 procedure. The examiner noted that steroid injections were administered to both knees in July 2015 and November 2016 and synvisc injections were administered to both knees in August 2016. The examiner noted that the last physical therapy ended in May 2016 and the Veteran still used bilateral knee braces and a cane. The examiner indicated that the Veteran’s last MRI in June 2016 showed osteoarthritis in both knees (especially patellofemoral) and small effusions with bilateral Baker Cysts, but no other bony, ligamentous, or meniscus changes. On examination, the Veteran demonstrated knee flexion to 110 degrees and extension to 0 degrees bilaterally with pain noted on flexion, weight bearing motion and palpation. The examiner noted evidence of crepitus in both knees, but no definite effusions or palpable Baker Cysts were identified. The examiner found no varum/valgum deformities in either knee. The examiner noted the range of motion after three repetitions showed additional limitation of flexion to 80 degrees bilaterally but no additional limitation of extension. The Veteran had reduced muscle strength at 4/5 bilaterally but no atrophy. The examiner noted no ankylosis, no history of recurrent subluxation, recurrent effusion, or lateral instability in either knee. Joint stability tests show no evidence of instability in either knee. The examiner noted no meniscus (semilunar cartilage) impairment, no recurrent patellar dislocation, no “shin splints” (medial tibial stress syndrome), no stress fractures, no chronic exertional compartment syndrome or any other tibial and/or fibular impairment in either knee. The Veteran’s treatment records during the appeal period have been reviewed but do not show any results that differ from the results found at the VA examinations regarding the Veteran’s knee disability and there was no showing of any other range of motion testing. The Veteran’s knee disabilities are evaluated based on limitation of motion. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 evaluates limitation of knee flexion. A noncompensable rating is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Diagnostic Code 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Here, the Veteran’s bilateral knee conditions do not warrant a compensable rating under either DC 5260 or DC 5261. A 10 percent rating for limitation of flexion requires flexion to be limited to 45 degrees and 10 percent rating for limitation of extension requires extension to be limited to 10 degrees. Here, the most recent VA examinations show that repetitive motion only reduced range of flexion to 110 degrees and to 80 degrees after repeated use, and he had full range of extension in both knees. As such, a compensable rating under DC 5260 and 5261 is not warranted. In considering range of motion ratings, it is important to consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202(1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the evidence shows that Veteran has painful motion in both knees. As such, a minimum compensable rating for each knee has been assigned. However, a higher rating is not warranted. While there is evidence of additional limitation on flexion due to pain and repeated use, such additional limitation would only render the Veteran’s knee flexion to be limited to 115 or 80 degrees bilaterally at his two VA examinations, which means, even considering the additional functional loss due to pain, the Veteran’s knee disability would still not reach the compensable level based on limitation of motion. As 10 percent rating is already assigned for each knee to compensate for the pain, a rating in excess of 10 percent for each knee is not warranted in the absent of evidence showing that the limitation of range of motion has reached the level of the 20 percent rating. See Mitchell. The Board also considered whether higher rating can be assigned under other Diagnostic Codes. Diagnostic Code 5256 evaluates ankylosis of the knee. The record contains no evidence of knee ankylosis, and the Veteran has not described symptoms that are suggestive of ankylosis. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee. Here, while the MRI in June 2016 shows mild effusions with Baker Cysts bilaterally, no definite effusions or palpable Baker Cysts were identified in the December 2016 VA examination, and the examiner indicated no recurrent subluxation, recurrent effusion, or lateral instability in either knee. While the Veteran reported knee slipping and popping and his tendency to fall, and there was evidence of crepitus in both knees as noted by the examiner in the December 2016 VA examination, the joint stability tests in both April 2014 and December 2016 VA examinations show no evidence of instability in either knee. The Board find that the weight of evidence is against a finding of recurrent subluxation or lateral instability, therefore, DC 5257 is not applicable and will not be discussed further. Diagnostic Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, which is synonymous with the meniscus. Here, while the Veteran reported knee locking and popping, and an arthroscopy procedure was performed in left knee in1996 for reported debridement of ACL degeneration, but ultimately no definite ACL rupture or reconstruction or any meniscus injuries were found. The MRI in June 2016 showed that no meniscus changes were found, and the examiner at the December 2016 VA examination concluded that there was no meniscus (semilunar cartilage) impairment in either knee. As such, the weight of evidence is against a finding of impairment of the semilunar cartilage, therefore, DC 5258 and 5259 are not applicable and will not be discussed further. Diagnostic Code 5262 evaluates impairment of the tibia and fibula. The record contains no evidence of a current impairment of the tibia and fibula, and the Veteran has not described symptoms that are suggestive of an impairment of the tibia and fibula. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Diagnostic Code 5263 evaluates genu recurvatum. The record contains no evidence of left genu recurvatum, and the Veteran has not described symptoms that are suggestive of left genu recurvatum. Therefore, this Diagnostic Code is not applicable and will be discussed no further. In sum, the Veteran’s bilateral knee disabilities cause mild limitation of motion at a noncompensable level, a 10 percent rating is assigned for each knee for painful motion, but a rating in excess of 10 percent is not warranted because the impairment on the range of motion has not met the 20 percent rating criteria under DC 5260-61. Other Diagnostic Codes have been considered (DC 5256-59, 5262-63), however, there is either no evidence or insufficient evidence to suggest that these Diagnostic Codes should be applied. A rating in excess of 10 percent for each knee is denied. GERD The Veteran is rated at 10 percent for his GERD under Diagnostic Code 7346. In September 2013, he filed a claim seeking a higher rating. Under Diagnostic Code 7346, a rating of 10 percent is warranted for GERD with two or more of the symptoms contemplated by the 30 percent evaluation. A 30 percent evaluation is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. In May 2014, the Veteran was afforded a VA examination. He reported that his GERD symptoms had worsened since 2009. He reported that his symptoms included pyrosis, reflux, regurgitation, nausea (4 or more times a year lasting less than 1 day on average), and vomiting (4 or more times a year lasting less than 1 day on average). The examiner noted that an endoscopy (EGD) in 2011 showed small hiatal hernia and gastropathy. The Veteran’s GERD was described as distracting. In August 2016, the Veteran was afforded another VA examination, at which he reported he had recurrent symptoms (4 or more times a year lasting less than 1 day on average) of epigastric distress, pyrosis, reflux, substernal pain, sleep disturbance caused by esophageal reflux. The examiner indicated that the Veteran did not have an esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. The examiner opined that the Veteran’s hiatal hernia and associated GERD condition had no adverse occupational implications and these conditions do not adversely impact on his strength and endurance factors. At the November 2016 Decision Review Officer (DRO) hearing, the Veteran testified that the GERD condition impaired his voice and he had a scratchy throat. He testified that he had difficulty in swallowing and that he scheduled a throat biopsy to rule out cancer which would be performed shortly after the hearing. The VA treatment records show that a microlaryngoscopy with a biopsy was performed in November 2016, and he was diagnoses with right true vocal cord lesion and squamous mucosa with mild dysplasia and hyperkeratosis, negative for invasive squamous cell carcinoma. Doctor’s notes in March 2017 show that the Veteran reported recurrent voice hoarseness after ENT biopsy. He reported that for a few weeks his voice was improved but now hoarseness returned, and that he continued to smoke and drink. There is no suggestion beyond the Veteran’s earlier statements to suggest that his throat symptoms are the result of his GERD. The VA treatment records between November 2016 and May 2017 show that the Veteran repeatedly denied dysphagia and he did not complain to his doctors about pyrosis, regurgitation, vomiting, or nausea. Review of evidence does not support a finding that the Veteran’s GERD symptoms have caused considerable impairment of his health, which is the requirement for a 30 percent rating or higher. Here, while the Veteran reported recurrent symptoms of epigastric distress, pyrosis, reflux, substernal pain, sleep disturbance caused by esophageal reflux and hoarseness in voice at the VA examinations and at DRO hearing, the medical examiner in August 2016 concluded that the Veteran’s GERD symptoms did not cause adverse occupational implications and did not adversely impact on his strength or endurance factors. The medical records after the DRO hearing show that Veteran had repeatedly denied dysphagia and there was lack of record showing complains of pyrosis, regurgitation, vomiting, or nausea. Although the medical records do show that the Veteran had recurrent voice hoarseness, the biopsy diagnoses were mild dysplasia and hyperkeratosis, and there is no evidence suggesting that these conditions are caused by GERD, and even if these conditions were caused by GERD, they are not shown to cause considerable impairment of the Veteran health as the biopsy has ruled out the invasive squamous cell carcinoma. In sum, as the evidence does not show that Veteran’s GERD symptoms have caused considerable impairment of his health, a rating in excess of 10 percent is denied. Depressive Disorder The Veteran’s depressive disorder is rated at 50 percent under Diagnostic Code 9411. In September 2013 he filed a claim seeking for a higher rating. A 50 percent rating is assigned when a veteran’s mental disability causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is assigned when a veteran’s mental disability causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is assigned when a veteran’s mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran was provided with a VA examination in May 2014, at which he reported living with his father and three of his paternal uncles since 2009. He reported that he had some female friends but had not been in any serious relationship since 2009. He reported that he used to work as a part-time caterer but had to stop working because his car was re-possessed and he could not travel to work by bus. He reported that he did “odd jobs” to get by. He reported that he attended college at the Webster University in 2009 but had a fight with his roommate and was transferred to University of Missouri at St. Louis but he did not finish, and remained 12 credit hours short of getting a Bachelor’s degree. He was not currently taking any classes. He reported his mood had been low and he spent his time lying around being depressed. He was not able to travel to visit his 12-year old son as frequently as he would like to, and he had no motivation to pursue his job or education. He reported that he had passive thoughts of death but he denied any suicide plan or attempts since 2010. He stated that his depression was the reason that he did not finish his college and was not in any serious relationships. He reported that he drank alcohol to help him sleep at night and he used marijuana 3-4 times a week because his mood is low. He reported that he smoked about a pack of cigarettes per day. On examination, the Veteran appeared to be dressed in neat clothes, he looked his stated age and he did not have any gross psychomotor abnormalities. He was cooperative and he maintained good eye contact. His speech had regular rate and rhythm but he had a monotone and slight increase in latency of his response. His flow of thought was logical, sequential and goal directed with no evidence of any thought disorder. He denied having any suicidal ideation or homicidal or assaultive ideations. He denied ever experiencing any hallucinations and there were no apparent delusions. He was alert and oriented. The examiner opined that the Veteran’s mental disability caused occupational and social impairment with reduced reliability and productivity. At the November 2016 Decision Review Officer (DRO) hearing, the Veteran testified that he felt depressed and moody and did not want to talk to anybody, and he would snap on individuals and he would be verbally and physically aggressive. He testified that he did not change his cloth every day and some days he did not bathe. He testified that he got panic attacks about once a month. He denied having current suicidal ideation. He reported that was divorced in 2000 with two kids (26 and 14) and he had good relationship with them. He testified the last time he worked was in 2013 and he got fired because he overslept. He testified that he had trouble to going to sleep, but denied any ritualistic behavior. To further investigate the Veteran’s mental condition, he was afforded another VA examination in December 2016, at which the Veteran reported living with his father and he did not spent time with too many people. He reported that his cousin and a good friend were killed in the recent 3 months and he feared for his own safety. He reported that he had a girlfriend he dated off and on for the past 3-4 years, and there had been some problems recently. He reported that the talked to his elder son occasionally and he expressed sadness that he could not bring his younger son to stay over at his house due to the poor state of his residence (lack of heat) and high crime neighborhood environment. He reported that he had no hobbies and he would either watch TV or try to sleep in the daytime, as he could not sleep at night. The Veteran reported that he had not worked or attended college courses since the previous C&P exam in 2014. He reported he last worked in 2013 for a flooring company, he was fired because he overslept and did not attend work on time. He stated he had not sought employment due to a lack of motivation and a recurrent depressed mood. He reported that he had intermittent suicidal ideation, though he denied suicidal plan or intent, his love for his children kept him from acting on suicidal thoughts. He reported that he had homicidal ideation towards the individuals who killed his cousin, however he denied that he has a specific plan for how he would do so, and he flatly denied any current intent to act upon these thoughts. He reported that he drank beer almost every day now, and he would consume 5-6 32 oz. cans of beer in a really bad day, but he denied using drugs, and he continued to smoke about 1.5 packs of cigarettes per day. The examiner diagnosed the Veteran with alcohol use disorder in addition to his depressive disorder. The examiner opined that, with regards to all mental disorders that the Veteran had been diagnosed, his mental disabilities caused occupational and social impairment with reduced reliability and productivity. Review of VA treatment records generally does not show results that are different from the VA examinations. There were some reports of fleeting suicidal ideation, but never with plan or intent. To this end, the Veteran stated that he knew he needed to get help and that after treatment there was no further discussion of suicidal ideation. While suicidal ideation can be an indication that a higher rating is warranted, here it does not appear that the suicidal ideation had the impact on the Veteran’s social and occupational functioning to support the assignment of a higher rating. Specifically, the Veteran stated that the symptomatology mostly let him know to seek counseling, which to his credit he did. The Board finds that the Veteran’s overall psychiatric symptomatology was consistent with a 50 percent rating. As discussed above, a 70 percent evaluation is assigned when a veteran’s mental disability causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Evidence suggests that although the Veteran does not maintain an active social relationship with many friends and families, he does have a normal relationship with his father and his children, and his girlfriends. Although he had not had a job since 2013, the evidence shows that it was partially due to his lack of motivation to pursue an employment as well as his physical disabilities. In this regard, the Board noted that the Veteran has been granted individual unemployability (TDIU) based on a combination of the impairment caused by his bilateral knee disabilities and mental disorder in connection with his prior employment of floor cleaning and banquet serving which involved prolonged standing, walking and carrying. While the Veteran has suicidal and homicidal ideation, he does not have a plan or intent. His homicidal ideation was specifically toward the killer of his cousin, and he cares about his own safety which shows his desire to live. Moreover, as noted above, the suicidal ideation was not shown to impact the Veteran’s social and occupational functioning to such a degree as to support a 70 percent rating. He does not have obsessional rituals which interfere with routine activities, and he does not experience hallucinations. His speech appears to be normal and his thought appears to be logical. He testified at DRO hearing that he had panic attacks once in a month, but not continuously. While he sometimes does not bathe or change clothes on daily basis, he appears to be able to function independently. As such, the Board finds that the impairment due to the Veteran’s objectively observable psychiatric symptomatology is more approximate to the 50 percent rating rather than the 70 percent rating. This conclusion is consistent with the findings of both VA examiners who have seen the Veteran during the course of his appeal and written that the Veteran’s psychiatric symptomatology is most consistent with a 50 percent rating. (Continued on the next page)   In reaching this conclusion, the Board is not attempting in any way to minimize the Veteran’s psychiatric symptomatology, the Veteran clearly has certain level of social and occupational impairment, which is why a 50 percent rating is assigned to him to compensate for that. However, the evidence is insufficient to show that the Veteran’s psychiatric symptomatology has caused occupational and social impairment with deficiencies in most areas. A 70 percent rating is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Q. Wang, Associate Counsel