Citation Nr: 1807319 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 12-01 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for a left ankle disorder, to include as secondary to a service-connected right knee disability. 3. Entitlement to service connection for erectile dysfunction disorder, to include as secondary to an acquired psychiatric disorder and/or the medications used to treat the acquired psychiatric disorder. 4. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder. 5. Entitlement to service connection for a left knee disorder, to include as secondary to the service-connected right knee disability. 6. Whether new and material evidence has been received to reopen a claim for service connection for numbness of the left foot. 7. Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disorder. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 9. Propriety of a reduction in the rating for limited flexion of the right knee from 20 percent to 10 percent, effective March 29, 2012. 10. Entitlement to an initial disability rating in excess of 10 percent for instability of the right knee. 11. Entitlement to a disability rating in excess of 20 percent for limited flexion of the right knee. REPRESENTATION Appellant represented by: Donald A. Donati, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to December 1979 and June 1980 to July 1984 in the United States Army. In December 2014, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. In March 2015, the Board remanded the above-captioned appeal for further development. At the time of the last remand, the psychiatric claim for service connection was separated into two claims for PTSD and depression. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claims have been combined and recharacterized to include any psychiatric disorder. Also at the time of the last remand, the claim for a higher rating for the right knee disability was captioned as a single claim. As the Veteran has been assigned separate ratings for his instability and limited flexion of the right knee, and both ratings are on appeal, the Board has separated the claims accordingly. See Notice of Disagreement; Supplemental Statements of the Case. With regard to the left knee claim, the Board has considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008), which provides that a claim premised on a diagnosis not considered in prior decisions is treated as a new claim without the need for new and material evidence. The RO denied a claim for service connection for a left knee disorder in a May 2006 final rating decision. Since then, a new left knee disorder, arthritis, has been diagnosed. As a close review of the record reveals that this diagnosis was not present when the claim was previously denied, the Board finds that the current claim may be considered without regard to whether new and material evidence has been received. The electronic filing system contains additional documents that were associated with the record since the RO's last readjudication of the claims without a waiver of RO jurisdiction. However, as the documents are exact duplicates of records already submitted and considered, there is no risk of prejudice to the appellant from proceeding without the waiver. The issues of entitlement to service connection for a left ankle disorder and left knee disorder, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. There is no credible supporting evidence of the Veteran's reported in-service stressors. An acquired psychiatric is not attributable to service, and psychosis was not manifest within one year of separation from service. 2. Erectile dysfunction disorder is not attributable to service. 3. Obstructive sleep apnea is not attributable to service. 4. A May 2006 rating decision denied the Veteran's claim for service connection for left foot numbness and a back disorder. There was no material evidence pertinent to the claim received within one year of the issuance of that decision. The Veteran was notified of the decision and apprised of his appellate rights but did not appeal. 5. The evidence received since the May 2006 decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for left foot numbness or a back disorder; it is cumulative of the evidence already of record. 6. The reduction of the rating for service-connected right knee disability based on limited flexion, from 20 percent to 10 percent, effective March 29, 2012, was improper in that it did not comport with applicable laws and regulations; moreover, the Veteran's functional level of disability had not materially improved. 7. Flexion of the right knee is not limited to 15 degrees or worse. 8. The right knee disability is not manifested by moderate recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, including PTSD and depression, have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.125 (2017). 2. The criteria for entitlement to service connection for erectile dysfunction disorder have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 3. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 4. The May 2006 rating decision denying service connection left foot numbness and a back disorder is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 5. Evidence received since the May 2006 decision is not new and material, and the claims for service connection for left foot numbness and a back disorder are not reopened. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. § 3.156 (2017). 6. The criteria for restoration of the 20 percent rating for the right knee disability based on limited flexion are met, effective March 29, 2012. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.105, 3.344 (2017). 7. The criteria for a rating in excess of 20 percent for limited flexion of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260 (2017). 8. The criteria for a rating in excess of 10 percent for instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reaching the decisions below, the Board considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Acquired Psychiatric Disorder In addition to the above regulations pertaining to service connection for psychiatric disorders other than PTSD, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (under the criteria of American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM), a link, established by medical evidence, between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 4.125 (2016). There generally must be independent evidence to corroborate the Veteran's statement as to the occurrence of the stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The PTSD regulations include provisions pertinent to Veterans with combat-related stressors, stressors founded on fear of hostile military or terrorist activity, stressors based on being a prisoner of war, and stressors based on personal assault. These provisions are not applicable here. The Veteran has current anxiety disorder and alcohol dependence in full remission, documented on VA examination in April 2011, as well as PTSD, depressive disorder, and somatic symptom disorder with predominant pain, documented in a December 2014 private medical report of Dr. O. On his service entrance examination, no psychiatric abnormalities were noted, and the Veteran raised no pertinent complaints. Service treatment records (STRs) show no complaints, treatment, or documentation pertaining to any psychiatric disorder. On separation from service in June 1984, the Veteran's psychiatric assessment was normal. He voiced no complaints in this regard. There are no records showing complaints or treatment for a psychiatric condition within one year of discharge from service; rather, records indicate an onset of treatment around 2008. The Veteran reports that his current psychiatric disorders, including PTSD, are predominantly related to a stressor that occurred in October 1983 while he was stationed in Nuremberg, Germany. He reports that he helped retrieve the bodies of four soldiers who died in a Jeep from carbon monoxide poisoning. He has provided statements describing this incident, including that the eyes were open on the bodies and the coloring of the skin was pink, giving an appearance of life. The Veteran reports he has questioned whether one of the soldiers was actually still alive when placed into the body bag. He reports that two of the soldiers were African American, and two were Caucasian. A second stressor, mentioned much less frequently but reported in a December 2009 VA Form 21-0781 and on VA examination in 2011, was that the Veteran served as an ambulance driver, transporting numerous dead soldiers, including a soldier killed during live-fire training who had the front of his face shot off. In support of his stressor involving the Jeep, the Veteran has reported that he was involved in the retrieval of the bodies at the request of a friend. When they arrived at the scene, the Jeep was covered with a tent, apparently for warmth, but the tent also covered the exhaust pipe which led to the carbon monoxide poisoning. He has submitted redacted personnel and other records, providing the names, photographs, and other information regarding the four soldiers. On the matter of nexus, the record contains the opinion of the April 2011 VA examiner, and the opinion of Dr. O. The April 2011 examiner opined that the Veteran did not meet the diagnostic criteria for PTSD. However, his anxiety disorder was associated with the events that occurred while working as an ambulance driver in Germany. In a November 2012 report, Dr. O. provided a summary of her clinical interview, record review, and mental status examination of the Veteran. She recounted the 1983 incident in Germany. She diagnosed chronic PTSD and poly substance abuse in sustained full remission, but did not provide a nexus opinion. In a December 2014 report, Dr. O. provided a supplemental opinion. She again described the 1983 Jeep incident in which the Veteran reported he recovered the soldiers killed from carbon monoxide poisoning. She diagnosed PTSD, depressive disorder, and somatic symptom disorder with predominant pain. His substance abuse had fully resolved. She opined that the psychiatric disorders were more likely than not related to his military experiences without further explanation. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. With regard to his PTSD, there is insufficient credible supporting evidence that the claimed stressors occurred. 38 C.F.R. § 3.304(f). The Board acknowledges the Veteran's contentions that four soldiers died while he was on active duty, but the supportive documentation submitted by the Veteran shows that they died in different locations in Germany, including Simbach, St. Leon-Rot, and Karlsruhe. The photographs of the fallen soldiers also are inconsistent with the Veteran's descriptions of their races, as the photographs do not depict two African American soldiers. The Veteran has argued that his personnel records indicate behavioral problems following the incident, including drug use in February 1984. However, his personnel file similarly shows behavior problems prior to the incident, including an assault he committed in April 1983. Further, and most significantly, his service personnel records and DD Form 214 show he served as a cook/hospital food service specialist throughout service; there is nothing indicating that he served as an ambulance driver or whose duties involved retrieving casualties. The Board thus finds the Veteran's report of his stressors is not credible, and there is insufficient credible supporting evidence of the events. The Veteran's attorney has asked VA to investigate the causes of death of each of the four fallen soldiers to support that they died of carbon monoxide poisoning. In February 2010 and May 2017 Formal Findings, however, the RO determined there was insufficient evidence to request corroboration from the Joint Services Records Research Center (JSRRC) or other entities, and the Board agrees given all of the above. The record shows that the Veteran has a PTSD diagnosis based upon his reported stressors relayed to medical professionals. However, his PTSD diagnosis is based on a stressor lacking credible supporting evidence, as required under 38 C.F.R. § 3.304(f). As the Board finds the Veteran's reported stressor lacks credible supporting evidence, the Board finds the diagnosis of PTSD to lack probative weight. It follows that any medical opinion based upon a noncredible stressor is equally not credible, and therefore carries no probative value. Thus, the record does not contain a PTSD diagnosis that is based upon credible supporting evidence. Without credible supporting evidence, the Veteran's claim for service connection for PTSD must fail. Additionally, the probative evidence does not show that the Veteran's psychiatric disorders other than PTSD are related to his active military service. The disorders were not found in service or within one year of separation from service; rather, the evidence reflects that the disorders were not shown until many years after service discharge. There were no reports of any psychiatric disability at discharge and no psychiatric condition was found upon his service discharge examination. The fact that he sought treatment for other conditions after service, but not a psychiatric disorder, weighs against the credibility of any statements that the disorder persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The April 2011 VA examiner's opinion linking the Veteran's psychiatric disorders other than PTSD to service is based upon evidence which the Board finds is not credible, rendering the opinion to be of low probative value. Thus, no probative evidence exists on this record that links a psychiatric disorder other than PTSD to an event in service. To the extent the Veteran reports that his psychiatric disorders are related to service, the Board finds that, under the facts of this case that include no continuous post-service symptoms, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of medically complex disorders such as anxiety disorder, PTSD, depressive disorder, or somatic symptom disorder with predominant pain. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). The Veteran's psychiatric conditions are medically complex disease processes because of their multiple etiologies, require specialized testing to diagnose, and manifest symptomatology that can overlap with other disorders. The etiology of the Veteran's current psychiatric disabilities is a complex medical etiological question involving internal and unseen processes, some of which are unobservable by the Veteran, especially in the context of this case where the weight of the evidence demonstrates no psychiatric symptoms for years after service, and shows denial of such symptoms at service separation. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Erectile Dysfunction Disorder & Sleep Apnea The Veteran has current erectile dysfunction disorder, shown in a February 2017 VA treatment record for example, as well as obstructive sleep apnea, diagnosed on a sleep study in September 2012. On his service entrance examination, no abnormalities involving erectile dysfunction or sleep problems were noted, and the Veteran raised no pertinent complaints. The STRs show no complaints, treatment, or documentation pertaining to a erectile dysfunction or sleep apnea. On separation from service in June 1984, pertinent abnormalities were not found. He voiced no complaints in this regard. There are no records showing complaints or treatment for the disorders within one year of discharge from service. The Veteran does not report that these disorders were incurred in service, rather, he reports they have been caused or aggravated by his psychiatric disorders, including the medications required to treat his psychiatric disorders. See, e.g., Hearing Transcript p. 24. He has reported having nightmares in service, but has not reported symptoms of sleep apnea in service. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claims. The probative evidence does not show that the Veteran's erectile dysfunction disorder or obstructive sleep apnea are related to his active military service. The disorders were not found in service or within one year of separation from service; rather, the evidence reflects that the disorders were not shown until many years after service discharge. There were no reports of any pertinent disability at discharge and the disorders were not found on his service discharge examination. The fact that he sought treatment for other conditions after service, but not erectile dysfunction disorder or obstructive sleep apnea, weighs against the credibility of any statements that the disorders persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The record does not include an opinion on the matter of service connection. However, in addition to the lack of credible lay or medical evidence showing that erectile dysfunction disorder or sleep apnea were incurred during service, the evidence does not link the disorders to service or to a service-connected disability. As there were no relevant complaints, treatment, or diagnoses in service, there is no injury, disease, or event to which a current disorder could be related. The standards of McLendon v. Nicholson, 20 Vet. App. 79 (2006) are not met here. Consequently, VA is under no duty to obtain a medical opinion addressing direct service connection. In addition to the regulation cited above, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). While the Veteran seeks service connection for his erectile dysfunction disorder and obstructive sleep apnea as secondary to his psychiatric disorders, because service connection has not been awarded for any psychiatric disorder, secondary service connection is not possible. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. New and Material Evidence Claims Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In considering these claims, the Board considered whether the Veteran has new or distinct diagnoses in accordance with the Federal Circuit's guidance in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). However, as the Veteran's diagnoses pertaining to his left foot and lumbar spine have been unchanged since the last final denial, Boggs does not apply. In a rating decision of May 2006, the RO denied service connection for numbness of the left foot and a back disorder. The evidence at the time consisted of statements from the Veteran, STRs, VA treatment records, and VA examination reports. With regard to the left foot, STRs did not show complaints, treatment, or diagnoses pertaining to numbness of the left foot. A neurological disorder was not manifest within one year of discharge. VA treatment records did not document a neurological disorder. On VA examination, the Veteran reported numbness of the left foot with no specific distribution found. The examiner found the condition was not related to the service-connected right knee disability. The RO denied the claim on a direct basis as it was not incurred in service, on a presumptive basis as it was not manifest within one year of service, and on a secondary basis as it was not related to the right knee disability. With regard to the back, STRs showed a report of back pain during service. VA treatment records did not show a back disorder. On VA examination, the Veteran reported chronic back pain. X-rays showed mild degenerative changes and the examiner opined the condition was not related to the service-connected right knee disability. The RO denied the claim on a direct basis as a chronic back disorder was not established in service, and on a secondary basis as it was not related to the right knee disability. There was no material evidence received pertinent to the issue within one year of the issuance of the decision. The Veteran was notified of that decision and of his appellate rights, but he did not appeal the decision. The May 2006 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. He has not raised a motion to revise that decision based on clear and unmistakable error. The evidence received since the last final May 2006 rating decision includes statements and testimony from the Veteran, his family, and friends, VA treatment records, private treatment records, and VA examination reports pertaining to other conditions. The basis for the prior denial was a lack of probative evidence establishing a nexus between a current disorder and service or a service-connected disability, or establishing presumptive service connection. The records received since May 2006 do not contain any discussion concerning the etiology of his left foot numbness or lumbar spine disorder, and do not support presumptive service connection. The December 2014 testimony of the Veteran, while both admissible and believable, is repetitive of statements made prior to May 2006. The prior evidentiary defect has not been cured, nor has it triggered VA's duty to provide further assistance. The evidence is cumulative and redundant of that already of record when the claim was denied in May 2006. In sum, the additional evidence received since the May 2006 rating decision does not relate to an unestablished fact necessary to substantiate the claims, nor does it raise a reasonable possibility of substantiating the claims. The benefit-of-the-doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (the benefit-of-the-doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met). The claims for service connection are not reopened. Rating Reduction Disability ratings may be reduced, however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). In a rating reduction case, it must be ascertained, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Moreover, 38 C.F.R. §§ 4.2 and 4.10 provide that in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement in a disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO when the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 281-282. It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. Under 38 C.F.R. § 3.344(a) & (b), applicable to ratings in effect for longer than 5 years such as the rating here, the RO must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995). When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). In February 2005, the Veteran was awarded service connection for his right knee disability. He was assigned a 10 percent rating, effective April 27, 2004. In May 2006, a higher rating of 20 percent was assigned, effective March 2, 2006. In September 2006, a rating higher than 20 percent was denied. In April 2011, the RO proposed a rating reduction, and in July 2011, a reduction to 10 percent was implemented, effective October 1, 2011. However, in February 2012, the rating reduction was essentially undone, and the 20 percent rating was restored from March 2, 2006. In the May 2012 rating decision on appeal, the RO reduced the Veteran's rating to 10 percent, effective March 28, 2012. In A June 2012 rating decision, the RO altered the effective date of the reduction to March 29, 2012, the date of a VA examination found to support the reduction. In March 2015, the Board remanded the claim for further development. 38 C.F.R. § 3.105(e) contains notice provisions and procedures applicable to rating reductions. Here however, the provisions of 38 C.F.R. § 3.105(e) do not apply because the May 2012 rating decision did not result in a reduction of compensation payments. In the decision, the RO additionally granted a separate, 10 percent rating for right knee instability, effective from March 28, 2012 and later amended to March 29, 2012 in the June 2012 rating decision.. As a result, there was no reduction in the Veteran's overall compensation payment. See Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007) (holding that 38 U.S.C. § 3012(b)(6) (1962) and 38 U.S.C. § 5112(b)(6) do not require VA to provide 60 days notice prior to a ratings reduction where the overall compensation paid to the Veteran is not reduced). However, the Board finds the reduction is void because the provisions of 38 C.F.R. § 3.344 were not met. The May 2012 decision to reduce was not in accordance with law because the RO did not make a finding that the VA compensation examination used as a basis for the reduction was as full and complete as the examinations on which the 20 percent rating was established and continued. There were no findings or discussion on whether there was material improvement, and there were no findings that it was reasonably certain that the material improvement found would be maintained under the ordinary conditions of life. The May 2012 rating decision does not reflect consideration or application of the procedures of 38 C.F.R. § 3.344. Moreover, the Board finds that the examination report forming the basis for the reduction was not as full and complete as those upon which the rating was originally based and continued. Specifically, the March 2012 VA examiner gave no indication that the claims file had been reviewed for the examination. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner to review the claims file rendered the reduction decision void ab initio). Additionally, the Board's review of the evidence before the RO in March 2012 does not clearly reflect a finding of material improvement, including an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. When comparing the VA examination report of March 2012, founding the basis of the reduction, with the April 2006 VA examination report which established the 20 percent rating, and the February 2011 VA examination report which most recently continued the 20 percent rating, the Veteran's right knee disability appears stable, at best, and possibly worse in some areas. Flexion was worse in March 2012 than in February 2011 (65 degrees compared to 80 degrees), and extension was the same. The DeLuca findings, concerning functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, were the same in March 2012 and April 2006. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Additionally, the March 2012 VA examiner noted that the condition required the constant use of a cane and brace, which was not noted at the time of the earlier examinations. In sum, the May 2012 rating reduction was erroneous as the RO failed to make findings in accordance with 38 C.F.R. § 3.344. It also cannot be stated with any certainty that there has been material improvement of the Veteran's service-connected right knee disability since the time the 20 percent rating was established. Thus, the 20 percent rating is restored, effective March 29, 2012. Claims for Higher Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The VA examination reports discussed below are adequate for adjudication. The examiners examined the Veteran and pertinent records, considered his history, and set forth objective findings necessary for adjudication. The Board has further considered the admissible and believable assertions of the Veteran. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the lay statements are not considered more persuasive than the objective medical findings which, as indicated below, do not support higher ratings than those assigned. In a February 2005 rating decision, service connection for the right knee disability was granted, and a 10 percent rating was assigned under 38 C.F.R. § 4.71a, DC 5727. In May 2006, a higher rating of 20 percent was assigned, effective March 2, 2006, under DC 5257. In September 2006, a rating higher than 20 percent was denied. In April 2011, the RO proposed a rating reduction, and in July 2011, a reduction to 10 percent was effectuated, effective October 1, 2011. However, in February 2012, the rating reduction was essentially undone, and the 20 percent rating was restored from March 2, 2006, under DC 5261. The Veteran did not appeal this rating decision. In March 2012, the Veteran filed statement indicating that his right knee disability was worsening. In a March 2012 Report of General Information, he clarified that he was filing a claim for a higher rating for his right knee disability. In the May 2012 rating decision on appeal, the RO reduced the Veteran's rating to 10 percent, effective March 28, 2012 under DC 5260. A separate, 10 percent rating for right knee disability was granted, effective March 28, 2012 under DC 5257. In a June 2012 rating decision, the RO altered the effective date of the reduction to March 29, 2012, the date of a VA examination found to support the reduction. The RO also altered the effective date of the separate rating for right knee instability to March 29, 2012. In March 2015, the Board remanded the claims for further development. Initially, in light of the restoration of the 20 percent rating above, the matters at issue now are entitlement to a rating higher than 20 percent for limited flexion of the right knee, and a rating higher than 10 percent for instability of the right knee. Also, the Board notes that the diagnostic code assigned to the Veteran's limited flexion of the right knee has changed since service connection was granted in 2005. This is permissible. See Read v. Shinseki, 651 F. 3d 1296 (Fed. Cir. 2011) (service connection for a disability is not severed when the Diagnostic Code associated with it is changed to more accurately determine the benefit to which a Veteran may be entitled). For rating purposes, a normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. As for limitation of flexion, VA's rating schedule provides for ratings of 10, 20, or 30 percent where there is limitation of flexion of the leg to 45, 30, or 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. As for limitation of extension, the rating schedule provides ratings of 10, 20, 30, 40, and 50 percent for limitation of extension of the leg to 10, 15, 20, 30, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. VA's General Counsel has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). The VA General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability, is rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). On VA examination in February 2011, the Veteran reported constant pain, instability, and popping. He could walk for 15 minutes or one to two blocks. He did not have flare-ups. He had not undergone surgery for his knee and had not received any injections. He reported the knee interfered with ambulating and working as a chef. On examination, there was no effusion. There was tenderness to palpation. The range of motion was 0 to 80 degrees, with pain between 40 and 80 degrees. There was no change on repetitive testing. While it was conceivable that pain could further limit function on repetition, it was not feasible to express such loss in terms of additional loss of motion as the matter could not be determined with any degree of medical certainty. The knee had a 2+ opening with varus stress in both extension and in partial flexion. It was stable to valgus stress, and he had a 3+ Lachman's test. Posterior drawer testing was stable. The examiner could not perform the McMurray test due to guarding. The diagnosis was a right knee chronic anterior cruciate ligament tear with a probable chronic medial collateral ligament tear, without posttraumatic arthritis. On VA examination in March 2012, the Veteran reported 8/10 pain on prolonged walking, standing, bending, and kneeling. He also reported stiffness and instability. He reported flare-ups occurring twice a week for around 2-3 hours. On examination, flexion was to 65 degrees with pain at 65 degrees. Extension was to 0 degrees with no pain. The Veteran could perform repetitive-use testing with 3 repetitions, without additional loss of motion. Functional loss included pain, less movement than normal, and atrophy of disuse. Muscle strength was normal in flexion and extension. Anterior stability testing was normal, posterior instability testing was normal, and medial-lateral instability testing was 1+. There was no history or evidence of recurrent patellar subluxation or dislocation. There were no meniscal conditions or surgery for such a condition. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. X-rays showed mild osteoarthritis. On VA examination in September 2013, the Veteran reported 8/10 pain in the knee. He had flare-ups occurring 2-3 times per week, lasting for 2-3 days. On examination, flexion was to 65 degrees with pain at 65 degrees. Extension was to 0 degrees without pain. The Veteran could perform repetitive-use testing with 3 repetitions, without additional loss of motion. Functional loss included pain, less movement than normal, and atrophy of disuse. Muscle strength was normal in flexion and extension. The Lachman test and posterior instability test could not be performed. Medial-lateral instability testing was normal. There was no history or evidence of recurrent patellar subluxation or dislocation. There were no meniscal conditions or surgery for such a condition. The examiner noted that the physical examination was limited by pain out of proportion with objective findings. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claims for higher ratings. As for the 20 percent rating based on limitation of flexion, the record throughout the appeal does not indicate that flexion has been limited to 15 degrees, as is required for the next higher rating. The preponderance of the evidence shows no additional loss of motion on repetition. The Veteran's pain and functional loss have already been considered in awarding the current ratings. The Board finds insufficient evidence to support a finding of pain so disabling as to actually or effectively limit motion to such an extent as to warrant the assignment of higher ratings under the applicable diagnostic codes. As for the 10 percent rating based on recurrent subluxation or instability, the record throughout the appeal does not indicate moderate subluxation or instability as is required for the next higher rating. The April 2011 examiner found instability with varus stress and Lachman's test, but the knee was stable to valgus stress and in posterior drawer testing. The March 2012 examiner found normal stability in all parameters except medial-lateral instability testing. The September 2013 examiner found normal stability in medial-lateral instability testing. The examination reports show that all tests for instability could not always be performed due to pain or guarding. The results of such testing are thus unknown; moreover, the September 2013 examiner noted that the physical examination was limited by pain out of proportion with objective findings. There has been no history or evidence of recurrent patellar subluxation or dislocation. Based on all of the above, the Board does not find there has been "moderate" recurrent subluxation or lateral instability of the right knee. No other diagnostic code provides a basis for the assignment of higher or separate ratings. Disabilities of the knee and leg are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Taking the remaining diagnostic codes in chronological order, as ankylosis has not been shown at any point, a rating under DC 5256 is not warranted. As a meniscal condition has not been shown, DCs 5258 and 5259 are not applicable. As extension was normal throughout the appeal, a separate rating is not warranted under DC 5261. As there has been no indication of malunion or nonunion of the tibia or fibula, or genu recurvatum, DCs 5262 and 5263, respectively, are not applicable. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. ORDER Service connection for an acquired psychiatric disorder is denied. Service connection for erectile dysfunction disorder is denied. Service connection for sleep apnea is denied. The application to reopen the claim for entitlement to service connection for numbness of the left foot is denied. The application to reopen the claim for entitlement to service connection a lumbar spine disorder is denied. Restoration of the 20 percent disability rating for limited flexion of the right knee is granted, effective March 29, 2012. An initial disability rating in excess of 10 percent for instability of the right knee is denied. A disability rating in excess of 20 percent for limited flexion of the right knee is denied. REMAND The record shows the Veteran has current degenerative changes of the left knee, as well as status-post left ankle sprains. See, e.g., VA treatment records April 2013, June 2013, July 2016, March 2017. Service treatment records (STRs) do not document a left ankle disorder, but a January 1984 STR shows bilateral patellar chondromalacia. The Veteran reports that his left knee and ankle disorders are secondary to his service-connected right knee disability. See, e.g., Hearing Transcript p.22. A VA examination has not yet been provided for the left ankle disorder, and an opinion must be obtained addressing secondary service connection. A VA examination must also be obtained for the left knee disorder. While the left knee was examined in April 2006, the Veteran had not yet been diagnosed with arthritis of the left knee. The examiner also did not address the matter of secondary service connection based on aggravation, and did not consider the January 1984 STR. The claim for a TDIU is intertwined with the service connection claims being remanded. A potential grant of service connection for the claims, and any statement made by the examiner on the impact of the disorders on employability pursuant to the applicable examination worksheet, would affect adjudication of the TDIU issue. Accordingly, these claims are REMANDED for the following action: 1. Afford the Veteran a VA examination addressing the etiology of his left knee and left ankle disorders. All current disorders must be identified. A rationale must be provided for all conclusions reached. The examiner must provide an opinion as to (i.) whether any current left knee or left ankle disorder began during active service or is related to any incident of service, and (ii.) whether any current left knee or left ankle disorder was (a) caused or (b) aggravated (chronically worsened) by the service-connected right knee disabilities. In rendering the opinions, the examiner must consider the January 1984 service treatment record showing bilateral patellar chondromalacia. 2. Thereafter, readjudicate the claims, considering all evidence. If the benefits sought remain denied, the Veteran and his representative should be provided a SSOC. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs