Citation Nr: 18156456 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-54 389 DATE: December 11, 2018 ORDER An initial compensable rating for right knee patellofemoral syndrome is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. FINDING OF FACT The Veteran’s right knee patellofemoral syndrome does not result in recurrent subluxation or lateral instability, flexion of 60 degrees or less, or extension of 5 degrees or more. CONCLUSION OF LAW The criteria for an initial compensable rating for right knee patellofemoral syndrome have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5256-5263, 5055 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2010 to November 2010 and from June 2011 to January 2012. Entitlement to an initial compensable rating for right knee patellofemoral syndrome. As an initial matter, the Boards notes that in the Veteran’s statements of disagreements concerning his right knee, he asserts he should be awarded compensation for his right knee pain because it started during basic training, and is thus related to his service. See October 2013 notice of disagreement (NOD). Additionally, he points out that his right knee was injured in service at the same time as his neck and back, and that he has been awarded compensation for those disabilities. See October 2013 NOD; September 2016 VA Form 9. In this regard, the Board seeks to reassure that service connection has been awarded for the Veteran’s right knee, along with his back and neck; thus, it is established that he has a right knee disability as a result of his service. Once service connection is established, however, the next question to be addressed is the level of a Veteran’s disability. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” 38 C.F.R. § 4.59. 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 is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Throughout the period on appeal, the Veteran has been assigned a noncompensable rating for his service-connected right knee patellofemoral syndrome under Diagnostic Code 5257 for other impairment of the knee. The Board will consider whether entitlement to a compensable rating under Diagnostic Codes 5260 and 5261 for limitation of flexion and extension are appropriate for this matter. 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5261. Other Diagnostic Codes relating to the knee are Diagnostic Code 5256 for ankylosis, Diagnostic Code 5258 for dislocated semilunar cartilage, Diagnostic Code 5259 for removal of semilunar cartilage, Diagnostic Code 5262 for impairment of tibia and fibula, 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. During a February 2013 VA examination, the examiner found that the Veteran had normal anterior stability, normal posterior stability, and normal medial-lateral stability. The examiner noted that the Veteran submitted that the was feeling weakness/instability but did not find instability upon testing. The Veteran’s right knee flexion was to 135 degrees with no objective evidence of painful motion. His right knee extension was to 0 degrees (full extension) with no objective evidence of painful motion. The examiner found that the Veteran was able to perform three repetitions without any additional functional loss or functional impairment. The examiner noted that the Veteran did not report any flare-ups with his knees. In statements received March 2014 and June 2015, the Veteran described having chronic pain in his knees. He was scheduled for another VA examination in September 2015. During that examination, the Veteran reported that he could not walk prolonged distances without pain, stand for longer than an hour, or sit for a couple of hours. He stated he had issues with running, climbing and descending stairs, and climbing in and out of trucks. He could not kneel, crouch down, or put a lot of weight on his knee. He denied receiving any health care for his knee. On physical examination, the examiner found the Veteran had normal anterior stability, normal posterior stability, normal medial stability, and normal lateral stability. The examiner also found that the Veteran had no history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner noted that the Veteran walked with a noticeable limp when he entered into the examination. The Veteran’s right knee had normal flexion to 140 degrees and normal extension to 0 degrees, with no pain noted on examination. There was also no evidence of pain with weight bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner found that the Veteran was able to perform three repetitions without any additional functional loss or functional impairment. Additionally, muscle strength testing was normal for both forward flexion and extension. The examiner noted that the Veteran did not report any flare-ups with his right knee and opined that the condition would not impact his ability to perform any type of occupational tasks. Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability of the knee is rated 10 percent. Moderate recurrent subluxation or lateral instability of the knee is rated 20 percent. Severe recurrent subluxation or lateral instability of the knee is rated as 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The examiners’ stability findings are consistent with the Veteran’s treatment records, which note complaints of knee pain. As the February 2013 and September 2015 VA examiners found that the Veteran had normal knee stability and the Veteran’s treatment records are consistent with those findings, the Board finds that the Veteran does not have recurrent subluxation or lateral instability of the knee. Thus, a compensable disability rating is not warranted under Diagnostic Code 5257. The Board has also considered whether Diagnostic Code 5260 for limitation of flexion and 5261 for limitation of extension are appropriate. A rating under Diagnostic Code 5260 is appropriate when flexion is limited to 60 degrees or less. A rating under Diagnostic Code 5261 is appropriate when extension is limited to 5 degrees or more. The Veteran’s treatment records do not include any knee range of motion testing nor do they indicate that the Veteran’s range of motion decreased. Therefore, based on the evidence of record, including the February 2013 and September 2015 VA examinations, the Veteran’s flexion was, at worst, to 135 degrees and his extension was, at worst, to 0 degrees. As his right knee flexion was greater than 60 degrees and extension was below 5 degrees, application of Diagnostic Codes 5260 and 5261 are not warranted. Id. The Board has considered 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). Here, the VA examinations documented normal 5/5 strength with no signs of weakness in the Veteran’s right lower extremity. Moreover, on range of motion testing, there was no evidence of pain and repetitive use did not further limit the Veteran’s range of motion. As such, greater ratings for limitations of flexion and extension are not warranted under DeLuca. While the Veteran reported chronic right knee pain, the U.S. Court of Appeals for Veterans Claims (Court) has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Here, the Veteran consistently retained normal flexion and extension, in excess of even that which would be required for a noncompensable rating. As such, there is no basis for a compensable rating under Diagnostic Codes 5260 and 5261. Based on the foregoing, the Board finds that a compensable disability rating for right knee patellofemoral syndrome is not warranted at any time during the period on appeal. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety, is remanded. In a February 2013 VA examination, the examiner found that the Veteran had no Axis I diagnosis and stated that he had a personality disorder, not otherwise specified (NOS) for an Axis II diagnosis. The examiner further found that the Veteran’s occupational and social difficulties were not caused or aggravated by his service in Iraq. However, a VA social worker who regularly works with the Veteran stated in an August 2015 treatment record that the examination was inadequate. Specifically, the social worker stated that the examination was inconsistent and did not focus enough on the Veteran’s post-service experience. In short, the social worker stated that he believed that the Veteran had PTSD from childhood that was aggravated by his service in Iraq. The social worker did not, however, evaluate each criteria to ensure that the Veteran had met each criteria for a diagnosis of PTSD. Based on the foregoing, the Board finds that the Veteran should be afforded another VA examination to determine whether the Veteran has an acquired or aggravated psychiatric disorder that is related to service. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran’s alleged psychiatric disorder. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether the Veteran has any psychiatric disorders. For each psychiatric disorder diagnosed, the examiner must opine whether it clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to the Veteran’s active service. The claims file must be made accessible to, and be reviewed by, the examiner. All appropriate tests and studies should be performed and all findings should be set forth in detail. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Shah, Associate Counsel