Citation Nr: 18157627 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-30 897 DATE: December 13, 2018 ORDER Entitlement to an effective date earlier than September 27, 2010 for the grant of service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), diagnosed as mixed depression and anxiety, is denied. Entitlement to an effective date of January 29, 1972, but no earlier, for the grant of service connection for left knee instability is granted. Entitlement to an effective date of January 29, 1972, but no earlier, for the grant of service connection for right knee instability is granted. Entitlement to an effective date of January 29, 1972, but no earlier, for the grant of service connection for left knee loss of extension is granted. Entitlement to an initial rating in excess of 50 percent for acquired psychiatric disorder, claimed as PTSD, diagnosed as mixed depression and anxiety, is denied. Entitlement to service connection for a left wrist/hand disorder is granted. Entitlement to service connection for chronic kidney disease is granted. REMANDED Entitlement to a higher initial rating for left knee instability is remanded. Entitlement to a higher initial rating for right knee instability is remanded. Entitlement to a higher initial rating for left knee loss of extension is remanded. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease with spondylolisthesis is remanded. Entitlement to an initial compensable rating for chronic constipation is remanded. Entitlement to service connection for a right foot strain is remanded. Entitlement to service connection for gastritis is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to February 25, 2013, is remanded. FINDINGS OF FACT 1. There is no document prior to the September 27, 2010 claim for service connection for an acquired psychiatric disorder that may be construed as a formal or informal claim of entitlement to service connection for an acquired psychiatric disorder. 2. With reasonable doubt resolved in favor of the Veteran, left and right knee instability and left knee limited extension were shown prior to the Veteran’s separation from service on January 28, 1972. These claims were received in January 1972. 3. The evidence shows that the Veteran’s chronic kidney disease is proximately due to or the result of service-connected knee disabilities. 4. The evidence is evenly balanced as to whether a left hand/wrist disorder is proximately due to or the result of service-connected knee disabilities. 5. The Veteran’s mixed depression and anxiety has not been shown to be productive of occupational and social impairment with deficiencies in most areas or of total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 27, 2010 for the grant of service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400 (2017). 2. The criteria for an effective date of January 29, 1972, but no earlier, for the grant of service connection for left knee instability have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for an effective date of January 29, 1972, but no earlier, for the grant of service connection for right knee instability have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for an effective date of January 29, 1972, but no earlier, for the grant of service connection for left knee loss of extension have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 5. The criteria for establishing service connection for chronic kidney disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 6. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for a left hand/wrist disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for an initial rating in excess of 50 percent for mixed depression and anxiety have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9435 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date The Veteran contends that the effective dates for the grants of service connection for an acquired psychiatric disorder, bilateral knee instability, and left knee extension are warranted. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Prior to March 24, 2015, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); see also Brokowski, 23 Vet. App. at 86-87. Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). As to an acquired psychiatric disorder, on September 27, 2010, the Veteran phoned VA stating that he wanted to apply for service connection for, among other disorders, “a nervous condition due to stress.” Subsequently, in correspondence received in November 2010, he stated that he wished to file for service connection for PTSD. A May 2017 rating decision granted service connection for an acquired psychiatric disorder, claimed as PTSD, diagnosed as mixed depression and anxiety, and assigned an effective date of September 27, 2010. The Veteran subsequently appealed, claiming entitlement to an earlier effective date. The record shows, however, that there is no document dated prior to September 27, 2010 showing an intent to apply for benefits related to an acquired psychiatric disorder. Accordingly, there is no basis to award an earlier effective date for the grant of service connection. September 27, 2010 is the date the claim was received, and is the later of the two dates – when entitlement arose and the date of claim – and thus is the proper effective date under the law. 38 C.F.R. § 3.400. As to bilateral knee instability and left knee extension, by way of background, in May 2010, the Board found that a March 1972 rating decision denying service connection for a bilateral knee disability contained clear and unmistakable error and therefore granted service connection for bilateral chondromalacia patella. A July 2010 rating decision implemented the Board’s decision, granting service connection for left and right chondromalacia patella and assigning effective dates of January 29, 1972 – representing the day after the day the Veteran was released from active duty. See 38 C.F.R. § 3.400(b)(2). In November 2010, additional private treatment records relating to the Veteran’s knee disabilities were received; in other words, new and material evidence was received prior to the expiration of the appeal period. See 3.156(b). After obtaining a VA knee examination in March 2012, in April 2012, the RO issued another rating decision denying entitlement to an increased rating for left and right chondromalacia patella. In July 2012, the Veteran timely appealed (although as discussed below, no statement of the case addressing these issues has been issued yet). During the pendency of these appeals, the RO also granted service connection for left and right knee instability and limited extension of the left knee. Specifically, in a May 2017 rating decision, the RO assigned an effective date of May 3, 2017 for left and right knee instability, finding that the first evidence of knee instability arose in a May 2017 VA examination. Limited extension of the left knee was assigned an effective date of May 19, 2016 because this was also the date of the first evidence of limited extension. The Veteran timely appealed this decision, claiming entitlement to earlier effective dates. The Board finds that earlier effective dates are indeed warranted. Initially, because the awards of service connection for left and right knee instability and left knee extension were ancillary to the Veteran’s appeal for higher initial ratings for left and right chondromalacia patella, the Board finds that these claims arise from the January 1972 claim – the same one which gave rise to the March 1972 rating decision denying service connection for bilateral knee disability which was later found to contain clear and unmistakable error. Moreover, the Board’s review of the evidence shows that the Veteran’s knees did indeed manifest instability and limited left knee extension at that time. In this regard, although a December 1971 medical board separation examination shows that the examiner found no ligamentous laxity in the knees, a September 1971 service treatment record shows that the Veteran complained of a history of painful knees and physical examination revealed slight instability, and an October 1972 service treatment record indicates that the Veteran reported some giving way in the knees. As to limited extension, although the December 1971 medical board examiner did not conduct range of motion testing, the Veteran was observed to walk “stiff legged…obviously having discomfort in his knees.” The Board finds this evidence sufficient to find that both knees exhibited instability and that the left knee exhibited limited extension prior to separation from service. Although objective medical evidence of instability prior to the January 1972 claim has been mixed, the Veteran’s in-service reports of instability were made for the purpose of receiving medical treatment and therefore may be considered relatively credible. See English v. Wilkie, No. 17-2083, 2018 U.S. App. Vet. Claims LEXIS 1464 (Vet. App. Nov. 1, 2018) (Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (“Unlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment”). Similarly, although range of motion testing was not conducted at the December 1971 evaluation, the Veteran was noted to walk stiff legged and with obvious discomfort, which supports the idea that the left knee was limited compared to its normal range of motion. Subsequent medical records further support the idea that there was limited extension well before the currently assigned effective date. See, e.g., April 2005 private treatment record (noting that range of motion of the left knee was limited to about five to 10 degrees of extension). Hence, because the January 1972 claim was received within one year of the Veteran’s separation from service but entitlement arose prior to that time, the appropriate effective date for these claims should be January 29, 1972 – the day following separation from active service. 38 C.F.R. § 3.400(b)(2). Accordingly, with reasonable doubt resolved in favor of the Veteran, the Board finds that entitlement to effective dates of January 29, 1972, but no earlier, for the grants of service connection for left and right knee instability and left knee loss of extension is warranted. As the Veteran has also appealed the initial ratings assigned for both knees, to include the ratings for instability and left knee extension, the RO should first implement the awards granted herein. If the benefit requested on appeal is not granted to the Veteran’s satisfaction, these issues will be returned to the Board for further appellate consideration. In granting these earlier effective dates, the Board intimates no opinion as to the appropriate ratings to be assigned. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. 3.310(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Chronic Kidney Disease The Veteran contends that his chronic kidney disease is the result of medications, specifically nonsteroidal anti-inflammatory drugs (NSAIDs) that he has taken to manage pain resulting from his service-connected knee disabilities. In November 2010, a VA examiner opined that it was less likely as not that the Veteran’s chronic kidney disease was secondary to residuals of medications for bilateral chondromalacia because ibuprofen is not known to cause kidney disease after ibuprofen has been stopped and it is not known to aggravate kidney disease if it is not being used currently. The examiner further opined that it was more likely that the chronic kidney disease was secondary to the Veteran’s non-service connected hypertension. In February 2013, the Veteran submitted a letter from one of his physicians who had been treating him for kidney disease. The doctor opined that even though the Veteran had not had a kidney biopsy to confirm analgesics nephropathy, he “highly suspect[ed] that the use of analgesics for pain control of his severe arthritis was a contributing factor, if not the major one, to cause his chronic kidney disease, with the presence of hypertension as an added factor.” In July 2016, the Veteran underwent another VA kidney conditions examination. The examiner, the same doctor who offered the November VA 2010 opinion, opined that it was at least as likely as not that the Veteran’s chronic kidney disease was due to NSAIDs that the Veteran had been taking for knee pain. The examiner observed that the Veteran had been taking NSAIDs on and off since about 1971 and that his serum creatine was 1.5 in 2005 but since hypertension was only diagnosed in 2003, it was unlikely that hypertension would have caused elevated creatine in two years. Based on the above, the Board finds that the preponderance of the evidence supports the Veteran’s claim that his chronic kidney disease was caused by NSAID use from his service-connected knee disabilities. The Veteran has submitted one positive opinion from his treating kidney disease physician and the VA examiner who initially opined that the Veteran’s non-service-connected hypertension was the main cause of the kidney disease later revised his opinion to conclude that NSAIDs were the primary cause of the kidney disease. The private opinion was offered by a physician who was familiar with the Veteran’s current kidney disease and medical history and the positive VA opinion was provided following a review of the claims file and examination of the Veteran. Both rationales are consistent with the evidence of record. As such, the Board finds that the weight of the evidence supports the claim. Entitlement to service connection for chronic kidney disease is granted. Left Wrist/Hand The Veteran also claims entitlement to service connection for a left wrist disorder which he attributes to having to frequently catch himself as a result of slipping and falling due to service-connected knee disabilities. See February 2018 DRO hearing (“the main thing is when I fall and I try to...not to hit my head and I’ll put my hands out in front and...I weigh 273 pounds all that going to my hands when I fall”). A December 2010 private treatment record shows that the Veteran complained of frequent falls as a result of his knees giving out and the doctor noted that he had a long history of the same symptoms of falls. An October 2012 private treatment record shows that the Veteran continued to complain of frequent falls at home with resulting wrist sprains. A March 2013 VA treatment record shows that the Veteran again complained of wrist and hand pain resulting from a fall the prior year. A November 2014 letter shows that the Veteran’s family physician wrote that the Veteran had several episodes of falling recently which caused a problem with pain in both wrists. In April 2014, a VA examiner opined, after reviewing the claims file and examining the Veteran, that the Veteran’s history, medical records, and physical examination indication that his right hand conditions were proximately due to his bilateral knee chondromalacia. The examiner noted that this condition started after multiple falls onto his hand since the 1970s. The examiner did not address the Veteran’s left hand because a March 2014 examination request erroneously indicated that the Veteran had only reported right hand/wrist problems due to falling. The Veteran was subsequently granted service connection for a right hand/wrist sprain associated with left knee chondromalacia patella. Based on the above, the Board finds that the evidence is at least evenly balanced as to whether a left hand/wrist disorder is secondary to falling due to service-connected knee disabilities. The evidence shows that the Veteran has consistently and credibly reported falling as a result of his service-connected knee disabilities and he has attributed bilateral hand/wrist pain to these falls. At the February 2018 DRO hearing, he credibly stated that when he falls he puts both his hand out in front of himself to catch himself. The April 2014 VA examiner has provided medical evidence of a causal link between the Veteran’s falling from his knee disabilities and his hand and wrist pain. In light of the Veteran’s credible statements regarding his left hand/wrist, the Board finds that this evidence may also serve as medical evidence of a nexus between the Veteran’s service-connected knee disabilities and his left hand/wrist disorder since there is no indication that the opinion was limited to the right hand only. In this regard, it appears that the examiner did not address the left hand simply because this was not requested by the RO and the examiner’s rationale did not suggest anything unique about the right extremity and falling, such as right hand dominance. Accordingly, with reasonable doubt resolved in favor of the Veteran, there is sufficient evidence to grant the claim. Entitlement to service connection for a left hand/wrist disorder as secondary to service-connected knee disabilities is granted. 38 U.S.C. § 5107. The benefit-of-the-doubt rule is a unique standard of proof, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Unspecified depressive disorder is evaluated under the general rating formula for mental disorders. 38 C.F.R. § 4.130, Diagnostic Code 9435. Under this general rating formula, a 10 percent rating is warranted when the evidence shows occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9435. A 30 percent rating is warranted when the evidence shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when the evidence shows 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 effective work and social relationships. Id. 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 worklike setting); inability to establish and maintain effective relationships warrants a 70 percent rating. Id. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name warrants a 100 percent rating. Id. Global Assessment of Functioning (GAF) scores are a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 61 to 70 reflect mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful relationships. See 38 C.F.R. § 4.130 (incorporating by reference the VA’s adoption of the DSM-IV for rating purposes). Lower numbers on the GAF scale reflect more severe symptoms; higher number reflects less severe symptoms. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) (also explaining that VA intended the General Rating Formula to provide a regulatory framework for placing veterans on the disability spectrum based upon their objectively observable symptoms). Here, November and December 2010 private treatment records show that the Veteran complained of sleeping problems including early awakening secondary to recurrent depression. A May 2011 private treatment record shows that the Veteran continued to experience trouble sleeping. A March 2013 VA treatment record shows continued difficulty sleeping, as well as excessive worrying, apprehension and lack of motivation; a GAF score of 55 was noted. June 2013 private treatment records show difficulty sleeping, depressed mood and some anger management issues. A July 2013 private treatment record shows similar symptoms as well as some marital problems, difficulty concentrating, and irritability. It was also noted that the Veteran reported hallucinations where he would see his mother and grandmother but the last time this occurred was about 1.5 years ago. The diagnosis was recurrent depressive disorder and the doctor assigned a GAF score of 61-70 and noted that his symptoms were mild. A September 2013 private treatment record shows that the Veteran reported feeling “OK” and that he was sleeping and eating better and that his depression was better. There were no psychotic symptoms. A September 2013 VA treatment record shows depressive symptoms with generalized anxiety and a GAF score of 55. A November 2013 private treatment record shows that the Veteran reported doing better and sleeping better although there was some depression around the holidays, and some low energy. Concentration was OK. There was some anxiety, mood swings were the same and there were some racing thoughts. A July 2014 VA treatment record shows that the Veteran felt less anxious, irritable and depressed. He reported sleeping well for the last few months. A GAF score of 55 was noted. In November 2014, he reported still feeling anxious and depressed and noted that he had not slept well since the last office visit. A December 2014 VA treatment record shows that he reported feeling less anxious, irritable and depressed and that he slept better. A November 2015 VA treatment record shows that the Veteran reported still feeling anxious and worried and that he did not sleep well. The Veteran underwent a VA examination in May 2017. The Veteran reported that he lives with his wife and brother in law. He stated that he does not do anything or go anywhere unless his wife takes him out. The examiner noted that the Veteran arrived in a wheelchair and was accompanied by his wife. He appeared to have a depressed mood especially when he talked of the death of his friend during boot camp. There were no suicidal or homicidal thoughts, plans or behaviors. There were no psychotic signs or symptoms. He scored 23/30 on a Montreal Cognitive Assessment indicating some difficulty in delayed recall and in abstraction which the examiner attributed to his depressed and anxious affect. The examiner noted symptoms including depressed mood, anxiety, chronic sleep impairment, mild memory loss. The examiner diagnosed mixed anxiety and depressive disorder which was assessed as causing occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A September 2017 VA treatment record shows that the Veteran reported that his medications were working well, that his symptoms were mild and infrequent, and that since the last visit he has been stable. At the February 2018 DRO hearing, the Veteran described some anger management issues and he reported some memory problems. He stated that although he used to have problems sleeping, now his medications make it easier for him to sleep. He reported frequently feeling anxious and moody. He stated that sometimes has problems making decisions and described himself as kind of a loner, noting that he does not like to be around other people because they make him nervous. He reported some problems with hygiene and stated that he has panic attacks around March and during the holidays. He also reported some crying spells. A March 2018 VA treatment record shows that although the Veteran reported symptoms of depression and anxiety, his only concern since the last visit was “bad dreams” and falling out of bed, and he reported that he is “nice and calm” during the day. Upon review of the evidence, the Board finds that entitlement to an initial rating in excess of 50 percent for mixed depression and anxiety is not warranted as symptoms of the Veteran’s mixed depression and anxiety have not been shown to be productive of occupational and social impairment with deficiencies in most areas. The evidence shows that throughout the period on appeal, the Veteran’s mixed depression and anxiety has generally been manifested by symptoms of difficulty sleeping, irritability, worrying, difficulty concentrating, mild memory loss, and low energy/motivation; however, many of these symptoms have at times shown periods of improvement. GAF scores have ranged from 55, representing more moderate symptoms to 70, representing mild symptoms, and the May 2017 VA examiner’s assessment was that, overall, the Veteran’s mixed depression and anxiety resulted in occupational and social impairment due to mild or transient symptoms – an assessment applicable to a 10 percent rating under the general rating formula for mental disorders. 38 C.F.R. § 4.130. While there have been reports of some more serious symptoms, such as a hallucination around 2011, panic attacks around the holidays, and crying spells, these infrequency of these symptoms shows that they are not representative of his disability. In sum, the Veteran’s mixed anxiety and depression disorder has not resulted in symptoms of such severity, frequency or duration as to equate with occupational and social impairment with deficiencies in most areas, nor has it resulted in total occupational and social impairment. Although he has described some social isolation and difficulties with his marriage, his disability has not generally been manifested by 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; or other symptoms of similar severity, frequency, and duration. The Veteran’s mixed anxiety and depression disorder has also not resulted in symptoms of such severity, frequency or duration as to equate with total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or other symptoms of similar severity, frequency, and duration. Accordingly, the Board finds that an initial rating in excess of 50 percent is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. 38 U.S.C. § 5107(b). REASONS FOR REMAND As to service connection for gastritis and erectile dysfunction, the Veteran contends that these disabilities were caused by pain medication that the Veteran has had to regularly take for his service-connected knee disabilities. In July 2013, a VA examiner concluded that gastritis and erectile dysfunction had not been caused by such medication; the examiner did not address, however, whether this medication had aggravated these disorders. Accordingly, addendum opinions are needed. As to the claim for hypertension, the representative has claimed that this is secondary to the ibuprofen that the Veteran has had to take for his service-connected knee disabilities. See July 2012 notice of disagreement. In support of this claim, the representative has submitted medical evidence of side effects and warnings related to ibuprofen which indicates that “NSAIDs, including ibuprofen tablets, can lead to onset of new hypertension or worsening of pre-existing hypertension.” See July 2012 correspondence. The Board finds this evidence sufficient to warrant obtaining a VA examination which has not yet been obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. 5103A (d)(2). As to entitlement to higher initial ratings for left and right knee osteoarthritis, as noted above, after implementing the Board’s grant of service connection in a July 2010 rating decision, the RO readjudicated the ratings assigned to left and right knee osteoarthritis in the April 2012 rating decision, which the Veteran timely appealed. As noted above, no statement of the case has been issued addressing these issues. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). As to the right foot, it is not clear whether this is an appeal for an increased rating or for service connection. The present appeal arises from a September 2016 claim where the representative submitted a claim with a cover letter stating, “Please find the following enclosed: Veteran’s Supplemental Claim dated September 15, 2016 for increase in R foot condition.” Enclosed was a standard VA form where the Veteran checked a box indicating that he wanted to file a claim for an increased evaluation for a “right foot strain: arch fallen, tendon torn.” At that time, the Veteran was already in receipt of a 10 percent evaluation for “right foot sprain,” which had been granted in an April 2014 rating decision. In a December 2016 rating decision, the RO denied service connection for “right foot strain.” In January 2017, the Veteran timely appealed the December 2016 rating decision. In the notice of disagreement, the Veteran wrote that the specific issue of disagreement was “right foot strain.” Next to that, he checked a box indicating that he disagreed with the evaluation of the disability. Thereafter, in June 2018, the RO issued a statement of the case addressing the issue of “service connection for right foot STRAIN [sic].” There the RO explained that because the Veteran had already been service connected for right foot sprain, it had interpreted the September 2016 claim as a new claim, not a claim for increase. (In a rating decision issued at the same time, the RO also increased the evaluation for the Veteran’s right foot sprain to 20 percent disabling.) Initially, the Board finds the RO’s interpretation of the September 2016 claim as one for service connection to be questionable. Given that the Veteran was already service connected for right foot sprain, and that he requested an increased evaluation in both the claim and the notice of disagreement, it seems unlikely that the Veteran’s intent was to draw a distinction between a sprain and a strain and request service connection for the latter. However, at a February 2018 DRO hearing, the representative elicited testimony from the Veteran as to why he believed that “your right foot…was caused by the problems with your knees,” and in July 2018, the representative submitted a VA Form 9, writing that it was for “service connection for right foot strain.” The representative’s statements therefore suggest that interpreting the appeal as one for an increased rating is incorrect. In short, it is not clear whether the right foot issue on appeal is for an increased rating or for service connection although the evidence is amenable to both interpretations. The AOJ should contact the Veteran and his representative to clarify this matter. To preserve consistency, the Board has listed the issue on appeal as it appears in the statement of the case; on remand, the RO should ensure that the issue is appropriately characterized. If indicated, a statement of the case addressing entitlement to an increased rating for right foot sprain should be issued. As to entitlement to a higher initial rating for left knee loss of extension and instability of the right and left knee, the Veteran most recently underwent a VA examination of the knees in May 2017. Although the VA examiner there indicated that there was evidence of pain on passive range of motion testing as well as in non-weight bearing, the examiner only estimated the range of motion for the right knee. See Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that an adequate VA examination of the joints must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing). As such, the AOJ should contact the May 2017 VA knee examiner to provide range of motion estimates for the left knee in passive range of motion and in non-weight bearing. If the examiner cannot provide the missing information, an additional examination should be scheduled. As to entitlement to higher initial ratings for degenerative disc disease with spondylolisthesis and chronic constipation, although a statement of the case addressing these issues was issued in June 2016, in August 2017, the Veteran underwent VA examinations addressing the current severity of both of these disabilities. See August 2017 VA spine examination; August 2017 VA intestinal conditions examination. No subsequent adjudication by the AOJ has taken place, however. See 38 C.F.R. §§ 19,31, 19.37 (2017). Accordingly, a supplemental statement of the case must be issued following initial review of this evidence by the AOJ. The issue of entitlement to a TDIU prior to February 25, 2013, is intertwined with the above remanded issues. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative to clarify whether the issue of entitlement to service connection for right foot strain, listed in the June 2018 statement of the case, is intended to be an appeal for service connection for right foot strain or a claim for an increased rating for right foot sprain. The RO should recharacterized the issue accordingly. If indicated, a statement of the case addressing entitlement to an increased rating for right foot sprain should be issued. 2. Provide the Veteran a statement of the case addressing the issues of entitlement to initial ratings in excess of 10 percent for left and right knee osteoarthritis. If, and only if, the Veteran or his representative files a timely substantive appeal (VA Form 9) should the AOJ return the appeal to the Board for appellate review. 3. Obtain all outstanding VA treatment records, to include records associated with the Jesse Brown VA Medical Center in Chicago, Illinois dated after September 2018. 4. Contact the May 2017 VA knee examiner to estimate the left knee range of motion in passive motion and in non-weight bearing. If the examiner cannot provide the missing information, an additional VA knee examination should be scheduled which is compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). 5. Schedule the Veteran for a VA examination to address the etiology of his hypertension. All necessary tests should be conducted. The claims file should be reviewed by the examiner. The examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran’s hypertension is related to or had its onset during the Veteran’s military service. The examiner should also indicate whether it is at least as likely as not (50 percent probability or more) that such disorder was caused or aggravated by service-connected disability, to specifically include NSAIDs such as ibuprofen that the Veteran has taken for his service-connected knee disabilities. Aggravation is defined as any worsening of a nonservice-connected disability by a service-connected disability; permanent worsening need not be shown. A complete rationale should accompany any opinion provided. 6. Thereafter, forward the entire claims file in electronic records and a copy of this remand to the author of the July 2013 VA opinion addressing the etiology of gastritis and erectile dysfunction, or to another appropriate VA examiner for an addendum opinion. If examination is indicated, it should be scheduled in accordance with applicable procedures. The examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran’s (a) erectile dysfunction or (b) gastritis is proximately due to or the result of pain medication that the Veteran has had to take for his service-connected knee disabilities. The examiner should also indicate whether it is at least as likely as not that (a) erectile dysfunction or (b) gastritis was aggravated by pain medication that the Veteran has had to take for his service-connected knee disabilities. Aggravation is defined as any worsening of a nonservice-connected disability by a service-connected disability; permanent worsening need not be shown. A complete rationale should accompany any opinion provided. 7. Implement the grants of earlier effective dates for left and right knee instability and left knee limited extension and assign disability ratings for each disability. (Continued on the next page)   8. After completing any additional development deemed necessary, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran’s satisfaction, the appellant and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel