Citation Nr: 1819092	
Decision Date: 03/29/18    Archive Date: 04/05/18

DOCKET NO.  11-00 050A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to a rating in excess of 30 percent for service-connected adjustment disorder.

2. Entitlement to a rating in excess of 20 percent for a service-connected left ankle disability, other than for the period of convalescence following an April 8, 2011 surgery.

3. Entitlement to a rating in excess of 30 percent for service-connected status post right total knee replacement (TKR).

4. Entitlement to a rating in excess of 10 percent for a service-connected left knee disability, other than for the period of convalescence following a July 14, 2011 surgery.

5. Entitlement to a rating in excess of 20 percent for a service-connected low back disability.

6. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to February 19, 2009.

7. Entitlement to Dependents' Educational Assistance (DEA) benefits prior to February 19, 2009.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from May 1978 to June 1991.

This case has a lengthy procedural history and comes before the Board of Veterans' Appeals (Board) on appeal from four rating decisions of the VA RO. A May 2010 rating decision increased the evaluation of the Veteran's left ankle to 20 percent. A December 2010 rating decision granted service connection for a back disability and assigned a 20 percent evaluation, granted a TDIU effective February 19, 2009, and established basic eligibility to DEA effective February 19, 2009. An October 2012 rating decision denied service connection for radiculopathy of the right leg, granted service connection and a 30 percent rating for adjustment disorder, continued the 10 percent rating of the Veteran's left knee disability, and denied entitlement to a temporary total evaluation of the left knee based on hospitalization or convalescence. A December 2013 rating decision continued the 30 percent rating of the Veteran's right knee disability. 

In March 2014, the Board remanded this case to the Agency of Original Jurisdiction (AOJ) for additional development. The case was subsequently returned to the Board.

In a December 2015 decision, the Board granted service connection for radiculopathy of the right lower extremity, and granted entitlement to a temporary total rating for convalescence following an April 2011 left ankle surgery. Thus these issues are no longer in appellate status. The remaining issues were remanded to the AOJ for additional development.

In a February 2016 rating decision, the RO effectuated the Board's decision, and established service connection and separate 10 percent ratings for radiculopathy of the right and left lower extremities. The RO granted a temporary total evaluation of the left ankle based on convalescence, from April 8, 2011, with a 10 percent rating effective June 1, 2011. In an April 2017 rating decision, the RO granted a temporary total evaluation of the left knee based on convalescence, from July 14, 2011, with a 10 percent rating effective September 1, 2011. (The Board notes that despite this award, the AOJ incorrectly included this issue in the September 2017 supplemental statement of the case, finding that this claim was denied. This issue is not in appellate status.) The remaining issues on appeal are as listed on the first page of this decision.

The issues of entitlement to a higher rating for a service-connected low back disability and to a TDIU and DEA benefits prior to February 19, 2009 are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. Prior to October 21, 2016, the symptoms and overall impairment caused by the Veteran's adjustment disorder with depressed mood more nearly approximated occupational and social impairment with reduced reliability and productivity.

2. From October 21, 2016, the Veteran's adjustment disorder with depressed mood has resulted in no more than 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).

3. During the period prior to April 8, 2011, and from June 1, 2011, the Veteran is in receipt of the maximum rating under Diagnostic Code 5271 for residuals of left ankle fracture with Achilles tendonitis; there is no evidence of left ankle ankylosis.

4. Throughout the rating period on appeal, the Veteran's right TKR was manifested by no more than intermediate degrees of residual weakness, pain or limitation of motion. There was no recurrent subluxation or lateral instability, and no ankylosis.

5. During the rating period prior to July 14, 2011, the Veteran's service-connected left knee disability was manifested by a partial meniscal tear, arthritis, constant pain, and effusion; range of motion was no worse than 5 to 100 degrees, there was no recurrent subluxation or lateral instability, and no ankylosis.

6. During the rating period from September 1, 2011, the Veteran's service-connected left knee disability was manifested by pain, range of motion was no worse than 0 to 105 degrees, there was no recurrent subluxation or lateral instability, and no ankylosis.



CONCLUSIONS OF LAW

1. Prior to October 21, 2016, the criteria for a 50 percent rating, but no higher, for adjustment disorder with depressed mood have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Codes 9434, 9440 (2017).

2. From October 21, 2016, the criteria for a higher rating in excess of 30 percent for adjustment disorder with depressed mood have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Codes 9434, 9440 (2017).

3. The criteria for a rating in excess of 20 percent for residuals of left ankle fracture with Achilles tendonitis, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40. 4.45, 4.71a , Diagnostic Code 5271 (2017).

4. A rating in excess of 30 percent for the right knee disability, status post right TKR, is not warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40. 4.45,  4.71a, Diagnostic Codes 5055, 5256, 5260, 5261 (2017).

5. During the period prior to July 14, 2011, resolving reasonable doubt in the Veteran's favor, the criteria for an increased 20 percent disability rating, but no higher, for the service-connected left knee disability are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40. 4.45, 4.71a, Diagnostic Codes 5010, 5257, 5258, 5260, 5261 (2017).

6. During the rating period from September 1, 2011, the criteria for a rating in excess of 10 percent for the service-connected left knee disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40. 4.45, 4.71a, Diagnostic Codes 5010, 5257, 5258, 5260, 5261 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

VA has duties to notify and assist a claimant with her claims. VA's duty to notify was satisfied by letters dated in March 2010 and May 2011. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

With regard to the appeal for a higher initial rating for service-connected adjustment disorder with depressed mood, in cases such as this, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103 (a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

VA also fulfilled its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing her. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, VA has obtained service treatment records, VA and private medical records, records from the Social Security Administration (SSA), vocational rehabilitation and employment (VRE) records, assisted the appellant in obtaining evidence, and arranged for VA compensation examinations and medical opinions as to the severity of her disabilities. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file.

Only if the record is inadequate or there is suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination. 38 C.F.R. § 3.327(a). The mere passage of time since does not, in and of itself, necessitate another examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

The Board finds that the examination reports were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. The examinations were conducted by competent medical professionals. In addition, it is not shown that the examinations were in any way incorrectly conducted or that the VA examiners failed to address the clinical significance of the Veteran's symptoms. Further, the VA examination reports addressed the applicable rating criteria.  In this regard, the reports of record contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the service-connected disability to provide probative medical evidence for rating purposes. The Board finds that the most recent VA examinations are adequate as they provide the information needed to properly rate disabilities. 38 C.F.R. §§ 3.327(a), 4.2. The Board finds that another examination is not needed since there is sufficient evidence, already on file, to fairly decide these claims.  

The Board further finds that the RO has substantially complied with its prior remand orders. In this regard, the Board directed the AOJ to obtain additional treatment records, arrange for another VA examination, obtain VRE records, and records from the SSA. These actions were completed, and the Board finds that no further development is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.

Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14. In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes.

When it is not possible to separate the effects of the service-connected disability from a non-service-connected disability, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).

When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's lay statements are considered competent evidence when describing her symptoms of disease or disability that are non-medical in nature.  Barr v. Nicholson, 21 Vet. App. 303 (2007), Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Her lay statements and testimony regarding the severity of her symptoms must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. And the ultimate probative value of her lay testimony and statements is determined not just by her competency, but also her credibility to the extent her statements and testimony concerning this is consistent with this other evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See also 38 C.F.R. § 3.159(a)(1) and (a)(2).

Adjustment Disorder

The Veteran's adjustment disorder with depressed mood has been rated as 30 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Codes 9434-9440 (2017). The Veteran contends that it is more disabling than currently evaluated. She has asserted that she has limited social interactions, is socially isolated and does not have acquaintances.

Pursuant to the General Rating Formula for Rating Mental Disorders (General Rating Formula), a 30 percent evaluation is warranted when there is 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). 38 C.F.R. § 4.130, Diagnostic Codes 9434 and 9440.

A 50 percent rating is warranted when there is 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id.

A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id.

The use of the term "such as" in the General Rating Formula demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for a particular rating. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, and permits consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on social and work functioning. Id.   

In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 118.

The record contains various Global Assessment of Functioning (GAF) scores that have been assigned by clinicians, which reflect the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240 (1995). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by replacing references to DSM-IV with the fifth edition of the DSM (DSM-5). See 38 C.F.R. 
§ 4.125 (2017). The DSM-5 is not applicable here, as the appeal was not pending before the AOJ on August 4, 2014. (This matter was previously remanded by the Board in March 2014.) Thus, the Board will consider the various GAF scores of record in evaluating the Veteran's occupational and social functioning. However, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is not determinative of the VA disability rating to be assigned. See Carpenter, supra. The percentage evaluation is to be based on all of the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126 (2017).

A GAF score between 41-50 reflect serious symptoms, (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning, (e.g., no friends, unable to keep a job). A GAF score of 51-60 represents 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). A GAF score of 61-70 indicates some 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 and has some meaningful interpersonal relationships.

On VA examination in June 2011, the Veteran reported that she visited with friends or relatives once or twice per month, limited because of her medical problems. Social relationships were generally good but she was less active socially because of her increasing pain and decreased mobility. She enjoyed reading and watching television but had reduced these activities because of fatigue and depression. The examiner stated that she had mild to moderate psychosocial impairment. The examiner noted that her orthopedic medical problems caused pain and increased limitations in her lifestyle, and as a result she had become depressed and developed insomnia. On mental status examination, she was clean, appropriately dressed, tense, speech was spontaneous, clear and coherent, attitude was cooperative and attentive, affect was appropriate and blunted, mood was depressed, attention was intact, she was oriented to person, place and time, thought process and content were unremarkable, she had no delusions, she understood the outcome of behavior, insight: she understood she had a problem, she had sleep impairment: she got about five hours of sleep per night, took a long time to fall asleep, her pain interfered with sleep. She had no hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, homicidal or suicidal thoughts, or episodes of violence. She had good impulse control and an ability to maintain personal hygiene. Memory was normal. She had problems with activities of daily living: moderate for shopping, traveling and recreational activities, and was prevented from sports/exercise. She was unemployed but not retired, for the past 5 to 10 years, due to physical problems. She did not contend that her unemployment was due to her mental disorder. The Axis I diagnosis was adjustment disorder with depressed mood. The Axis IV diagnosis was chronic health issues with significant limitations on mobility and chronic pain. The GAF was 58 currently. The examiner opined that she did not have total occupational and social impairment due to a mental disorder, and her mental disorder did not result in deficiencies in judgment, thinking, family relations, work, mood or school. The examiner opined that she had reduced reliability and productivity due to her mental disorder symptoms.

The examiner stated that the Veteran had a moderate amount of depression and insomnia caused by her chronic pain and limitations from her service-connected medical problems. It was anticipated that she would have moderate impairment of occupational reliability and productivity if she were able to work but continued to have her current level of psychological dysfunction. She also showed mild to moderate level of social impairment as a result of her depression, but her main limitations in this regard were her physical issues. The Veteran stated that her depression would be resolved if she were mobile and pain-free, and that most of her insomnia was secondary to being awakened by her pain.

VA outpatient treatment records dated from 2014 to 2017 reflect that multiple depression screenings were negative.

On VA examination on October 21, 2016, the Veteran reported that she lived alone and enjoyed church. She performed her activities of daily living regularly. She had been married and divorced twice. She last worked in 2005 at the VA, and left due to her knee replacement. She reported feeling lonely for years after her second divorce. She said she had always been a loner and her mother would always find her reading books instead of playing with peers. She relocated in 1999 after her discharge from the service, and never made friends. She had fish and was looking for a new dog. She planned to get one after she returned from her 65th birthday trip to Vegas. She was also looking forward to a cruise. The only symptom the examiner found due to the Veteran's diagnosis was a depressed mood. 

On mental status examination, she was alert and oriented, appeared to provide an accurate history and insight was adequate. Auditory comprehension was intact and response times were normal. Affect was congruent to mood. Thought processes were linear and coherent. She was not distractible. Spontaneous speech was fluent, grammatical and free of paraphasias. Immediate, recent and remote memories appeared within normal limits. She denied suicidality and homicidality at this time. The examiner opined that the Veteran's depression appeared intermittent and related to interpersonal/situational factors. The examiner diagnosed unspecified depressive disorder, and opined that the Veteran had only one current mental disorder. The examiner opined that her depressive disorder was manifested by occupational and social impairment at this level: a mental condition has been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. 

During the rating period prior to October 21, 2016, the Board finds that the Veteran had symptoms listed in the criteria for both a 30 and a 50 percent rating, as well as the impairment indicated by each of these criteria. As an initial matter, the Board notes that the June 2011 VA examiner assigned a GAF score of 58, which, as noted above, represents moderate symptoms or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). The Board has considered this GAF score in conjunction with the subjective symptoms reported by the Veteran to include depression, increased isolation, and impaired sleep. See VA treatment records, lay statement, and June 2011 VA examination. 

Here, there is evidence of symptoms listed in the criteria for both the 30 percent (depressed mood, chronic sleep impairment) and 50 percent (difficulty in establishing and maintaining effective work and social relationships, and disturbances of motivation and mood). Although the Veteran has been unemployed for some years, her overall occupational and social impairment has been at times of a level at which she was generally functioning satisfactorily but also at times caused reduced reliability and productivity. The evidence is thus approximately evenly balanced as to whether the Veteran's symptoms more nearly approximate the criteria for a 30 or 50 percent rating prior to October 21, 2016. As the benefit of the doubt doctrine requires that this relative equipoise in the evidence be resolved in favor of the Veteran, an initial rating of 50 percent is warranted for adjustment disorder with depressed mood, during the period prior to October 21, 2016. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.

During the rating period from October 21, 2016, the Board finds that the preponderance of the evidence of record does not support the assignment of a rating in excess of 30 percent for adjustment disorder with depressed mood. Importantly, although there is no indication that the Veteran was working during this period of the appeal, she has related this to her knee disability. Extensive VA medical records do not reflect ongoing treatment for a psychiatric disorder, and the October 2016 VA examiner opined that although a mental condition has been formally diagnosed, the Veteran's symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. This is consistent with a lower, noncompensable rating. The Veteran has reported only intermittent symptoms of depression, enjoys church and going on vacations, and successfully managing her daily activities. The probative evidence of record does not show 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. During this period, she reported a lack of friends and intermittent depression, but no abnormalities were shown with regard to speech, affect, memory, judgment or thinking.

In addition, there was no indication that the Veteran exhibited any objective difficulty understanding complex commands or impairment in memory, or that she reported panic attacks. The Veteran also consistently denied any suicidal or homicidal ideation. The Veteran's symptoms have not more nearly approximated the criteria for a 50 or 70 percent rating during the appeal period from October 21, 2016, and the evidence is not approximately evenly balanced on this point. The VA examiners did not indicate symptoms other than those noted above, and the Veteran did not indicate symptoms listed in the criteria for 70 or 100 percent rating or their equivalent in her statements. There was no evidence of obsessive rituals, delusions, hallucinations, abnormal speech, thought processes or judgment. Importantly, the Veteran's speech has consistently been described as within normal limits, there is no indication that the Veteran has had difficulty understanding any commands or that she has impaired judgment; and there is no indication that she had any impaired abstract thinking, as thought processes were reported as logical and goal-directed, and there is no objective evidence of a thought disorder. The evidence does not reflect that she has hallucinations, unusual thought content or perceptual aberrations.

In light of this evidence, the Board finds that the severity of the Veteran's overall adjustment disorder with depressed mood disability more nearly approximates the already-assigned 30 percent rating from October 21, 2016. 38 C.F.R. § 4.7. Thus, a higher rating is not warranted during this period.


Left Ankle Disability

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Spencer v. West, 13 Vet. App. 376, 382 (2000) (noting that because the Veteran was in receipt of the maximum rating for limitation of motion under Diagnostic Code 5215 and the record failed to show evidence reflecting symptomatology necessary for a higher rating for ankylosis under Diagnostic Code 5214, the Veteran is not entitled to a higher rating, even though there is evidence of record reflecting that the appellant has pain on movement). 

Throughout the rating period on appeal (other than the period of a temporary total rating for convalescence from April 8, 2011 to June 1, 2011), the RO has rated the service-connected left ankle disability as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5271. 

Diagnostic Code 5271 provides the rating criteria for limited motion of the ankle. Moderate limited motion merits the assignment of a 10 percent rating, and marked limited motion merits the assignment of a 20 percent rating. Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II. 

The Veteran seeks an increased rating for her left ankle disability. She asserts that she has left ankle pain, and her ankle felt as if it were "slipping out of the socket." She said she sometimes could not stand up on the ankle, had difficulty walking, and constantly wore an ankle support.

The Board notes that neurological symptoms from her separately service-connected condition of radiculopathy of the left lower extremity will not be considered in evaluating the service-connected left ankle disability. See 38 C.F.R. § 4.14 (the use of manifestations not resulting from service-connected disability for evaluating the service-connected disability is to be avoided). 

On VA examination in April 2010, the Veteran complained of left ankle pain, and said her ankle felt like it was slipping out or catching. On examination, there was an antalgic gait. Range of motion of the left ankle was as follows: dorsiflexion from 0 to 10 degrees, and left plantar flexion from 0 to 15 degrees. There was objective evidence of pain with active motion on the left, and pain following repetitive motion. There were no additional limitations after repetitive movement. There was no ankylosis of the joint. A January 2010 magnetic resonance imaging (MRI) of the left ankle showed osteochondral defect involving the posteromedial aspect of the talar dome, and mild flexor hallucis longus tenosynovitis.

The Veteran underwent left ankle surgery on April 8, 2011, with arthroscopic removal of loose body and excision of anterial tibial osteophyte. 

On VA examination in September 2014, the examiner diagnosed status post left arthroscopic surgery for osteochondral defect posteromedial talar dome with loose body of the left ankle. The Veteran reported ankle pain when standing for about 10-15 minutes. She denied left ankle pain with sitting. She reported intermittent left ankle pain, and said her ankle was less aggravating since her surgery. She reported flare-ups when standing or walking for too long. Range of motion of the left ankle was as follows: dorsiflexion from 0 to 10 degrees, and plantar flexion from 0 to 40 degrees. No pain was noted on examination, and there was no pain on weight-bearing. There was tenderness to palpation, and swelling was seen. The examiner opined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-up.

Upon review of the record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 20 percent for the service-connected for residuals of left ankle fracture with Achilles tendonitis, at any time during the appellate period other than the period of a temporary total rating for convalescence from April 8, 2011 to June 1, 2011. The Board acknowledges the Veteran's subjective complaints related to her left ankle, to include pain and giving way. The Board also acknowledges that the Veteran has received treatment throughout the appeal period for complaints of left ankle pain and other symptomatology. However, as the Veteran is currently in receipt of the maximum rating assignable under Diagnostic Code 5271, the assignment of a rating in excess of 20 percent is impossible under this diagnostic criterion. 

The Board has considered the other diagnostic criteria related to the ankle to determine whether rating in excess of 20 percent is warranted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The only diagnostic code that provides ratings in excess of 20 percent, however, is Diagnostic Code 5270, which provides the rating criteria for ankle ankylosis. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Diagnostic Code 5270 is not applicable to the Veteran's service-connected disability as there is no evidence in the treatment records or VA examination reports that the Veteran's left ankle is ankylosed.

As noted above, once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain. See Johnston, 10 Vet. App. at 85. As an initial matter, the Veteran was able to perform repetitive-use testing of her left ankle with three repetitions without any additional limitation of motion during the VA examinations in April 2010 and September 2014. Both examinations specifically found that the Veteran did not have ankylosis in the left ankle. The Board finds that the demonstrated functional limitations are all related to loss of motion, which is considered in the diagnostic criteria used to evaluate the Veteran's left ankle disability. 

In sum, the preponderance of the evidence supports the currently assigned 20 percent rating for residuals, status post left medial malleolus fracture. As there 
is no competent evidence of ankylosis of the left ankle, a higher rating is not warranted. 

The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Bilateral Knee Disabilities

The Veteran contends that her right and left knee disabilities are more disabling than currently evaluated. 

Diagnostic Code 5010 concerns arthritis due to trauma; it requires establishment by X-ray evidence. Diagnostic Code 5010 is to be rated the same as DC 5003. Under DC 5003, degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. However, in the absence of limitation of motion, the disability is to be rated as 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups; and as 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Disability ratings under DC 5003 is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. Multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints. 38 C.F.R. § 4.45.

The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71 , Plate II.

Under Diagnostic Code 5260, pertaining to limitation of leg flexion, a noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a , Diagnostic Code 5260.

Under Diagnostic Code 5261, pertaining to limitation of leg extension, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

Under Diagnostic Code 5256, for extremely unfavorable ankylosis of the knee in flexion at an angle of 45 degrees or more, a 60 percent evaluation may be assigned. For ankylosis of the knee in flexion between 20 and 45 degrees, a 50 percent rating is assignable. A 40 percent evaluation may be assigned for ankylosis of the knee in flexion between 10 and 20 degrees. With ankylosis at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, a 30 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5256.

Knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a , Diagnostic Code 5257. 

Symptomatic removal of the semilunar cartilage is assigned a maximum 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259. Disabilities involving cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint are assigned a maximum 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258.

Malunion of the tibia and fibula of either lower extremity with slight knee or ankle disability warrants a 10 percent evaluation. A 20 percent rating is assignable when the disability results in moderate knee or ankle disability. A 30 percent evaluation requires that the malunion produce marked knee or ankle disability. Nonunion of the tibia and fibula of either lower extremity warrants a 40 percent rating if there is loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262.

VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604  (July 1, 1997; revised July 24, 1997). The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. VA's General Counsel further explained that, if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. This is because, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59  provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

VA's General Counsel has additionally held that separate ratings may also be assigned for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59, 990 (2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same knee, the limitations must be rated separately to adequately compensate her for functional loss associated with injury to his leg and knee. Id.  

Right Knee Disability

The Veteran's right knee disability, status post right TKR, has been rated as 30 percent disabling throughout the rating period on appeal, under Diagnostic Code 5055. 38 C.F.R. § 4.71a. She has stated that her right knee disability is manifested by chronic pain and difficulty climbing stairs.

Under this code, a 60 percent evaluation may be assigned for knee replacement (prosthesis) with chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, rate by analogy to diagnostic codes 5256, 5261, or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055.

VA compensation examinations of the right knee disability have been performed in June 2011, October 2013, and May 2017. She has consistently complained of right knee pain.

Range of motion of the right knee was 0 to 90 degrees in June 2011, with no objective evidence of pain or additional limitation of motion after repetitive motion. She denied giving way, instability, dislocation, locking, effusion and weakness in June 2011. Limping was noted, with no other evidence of abnormal weight-bearing. On examination, there was no instability.

Range of motion of the right knee was from 0 to 95 degrees in October 2013, with objective evidence of painful motion at 90 degrees. The examiner indicated that the Veteran had pain and less movement than normal after repetitive motion, but the range of motion findings were unchanged. The examiner opined that the Veteran had intermediate degrees of residual weakness, pain or limitation of motion due to the right TKR. There was no instability on examination.

Range of motion of the right knee was 0 to 110 degrees on VA examination in May 2017. Reduced range of motion was present due to pain induced with flexion and extension, functional loss and Veteran's response to the pain with examination. There was pain on weight-bearing. The Veteran stated that her knee was painful constantly. There was no additional functional loss or limitation of motion after repetitive use testing. There was no ankylosis, recurrent subluxation or lateral instability.

In light of the evidence of record and applicable law, the Board finds that the Veteran's residuals of a right knee injury, status post TKR is appropriately evaluated as 30 percent disabling. The objective findings of record do not reflect more than intermediate degrees of residual weakness, pain or limitation of motion to warrant a higher rating under Diagnostic Code 5055. The Board notes that physical examination revealed abnormal weight bearing. The Veteran reported that she would have difficulty with performing occupational tasks that would require standing, sitting, walking for extended periods of time, using stairs, running, sudden motion with her right knee, squatting, or kneeling.

The Board finds that the manifestation of the Veteran's right knee disability is indicative of an intermediate rather than severe level of symptomatology, and the 30 percent evaluation adequately addresses the functional impairment caused by her left knee disability. 

The Board has considered whether evaluating the right knee disability by analogy would yield a higher evaluation than the single rating under Diagnostic Code 5055. However, separate ratings would not result in an evaluation greater than the 30 percent she currently receives. The objective evidence does not show limitation of motion of the right knee to 45 degrees of flexion or 10 degrees of extension to warrant a compensable evaluation. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. In this regard, the Veteran's right knee was shown to have, at worst, 0 degrees of extension and 90 degrees of flexion, without objective evidence of pain with active motion. Indeed, her range of motion throughout the rating period does not support compensable ratings under Diagnostic Codes 5260 and 5261 in the right knee. Thus, the 30 percent rating presently assigned already take into account her painful motion in the right knee. Further, the evidence does not demonstrate objective evidence of pain or additional degree of limitation of motion in response to repetitive motion that would support an increased evaluation. See DeLuca, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59.

While VA's General Counsel has held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint, as the Veteran's range of motion in the right knee does not support compensable ratings under either of those Diagnostic Codes, separate ratings for flexion and extension are not warranted for the right knee. VAOPGCPREC 9-2004, 69 Fed. Reg. 59990  (2004). Likewise, as the evidence does not establish competent and credible evidence of instability, a separate rating under Diagnostic Code 5257 is not for consideration. See VAOPGCPREC 23-97; VAOPGCPREC 9-98. Objective findings do not support her statements regarding instability, and her unsupported lay assertions do not outweigh the referenced findings which are consistent across multiple examinations and different examiners.

Moreover, as the objective evidence does not show ankylosis a higher rating under Diagnostic Code 5256 is not warranted. 38 C.F.R. § 4.71a. Diagnostic Code 5262 is inapplicable as she does not have impairment of the tibia and fibula.

The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of her right knee disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased rating for the right knee disability, status post TKR.
Left Knee Disability

The Veteran filed a claim for an increased rating for the service-connected left knee disability in February 2011. She has stated that her left knee disability is manifested by pain, tenderness and instability. The Veteran's left knee disability, chondromalacia of the left knee, has been rated as 10 percent disabling throughout the rating period on appeal (with the exception of the period from July 14, 2011 to September 1, 2011, when she had a temporary total evaluation based on convalescence), under Diagnostic Code 5010. 38 C.F.R. § 4.71a.

Period Prior to July 14, 2011

A February 2011 VA orthopedic surgery consult reflects that the Veteran complained of left knee pain. On examination, she had full extension, and flexion to 110 degrees. She had point tenderness over the medial side of the joint, extending posteriorly, and a moderate effusion. An X-ray study showed moderate tricompartmental arthritis with some narrowing on the medial side of the joint. A magnetic resonance imaging (MRI) scan of the left knee showed medial and lateral meniscal tears, moderate effusion, and some osteochondral defects. A May 2011 treatment note shows that range of motion was from 5 degrees of extension to 100 degrees of flexion. There was pain over the lateral side of the knee extending posteriorly behind the patella. She had a good quadriceps, and no effusion. McMurray's test was positive.

On VA examination in June 2011, there was no crepitation, grinding, instability or patellar abnormality, locking, effusion or dislocation. There was a meniscus abnormality. McMurray's test was positive. There was localized tenderness over the medial meniscus area. Range of motion was from 0 to 120 degrees. There was objective evidence of pain with active motion.

On July 14, 2011, the Veteran was diagnosed with a tear of the posterior horn of the medial meniscus, and underwent arthroscopic partial medial meniscectomy and arthroscopic chondroplasty of the left knee.

During the rating period prior to July 14, 2011 (when the Veteran had her left knee arthroscopy and partial medial meniscectomy), the left knee disability has been rated as 10 percent disabling. After a review of all of the evidence of record, the clinical reports do not document that the Veteran's left knee disability was productive of functional impairment consistent with limitation of extension to 15 degrees or more or limitation of flexion to 30 degrees or less as required under Diagnostic Codes 5261 and 5260 for a rating in excess of 10 percent at any time during this portion of the appeal period. In fact, flexion of the left knee was to 110 or 100 degrees in February and May 2011, and 120 degrees on June 2011 VA examination, and extension was generally full during this period, with one examination showing limitation to 5 degrees. See 38 C.F.R. § 4.71, Plate II. Even considering the effects of pain on motion, there is no probative evidence that pain reduced motion during this period to the extent required for an increased rating in excess of 10 percent under the limitation of motion codes. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In essence, the medical reports on file do not demonstrate the level of loss of motion (in either flexion or extension) necessary for either a higher rating or separate ratings based on limitation of flexion or extension at any time during this portion of the appeal period. The current 10 percent rating is proper for the left knee disability based on X-ray evidence of arthritis with painful motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5010; Lichtenfels, supra; VAOPGCPREC 9-98.

The Board will also consider whether an increased rating is warranted under other relevant Diagnostic Codes. During this period, considering the left knee disability under Diagnostic Code 5257, pertaining to instability, the Board finds that the evidence does not show moderate recurrent subluxation or lateral instability, and thus a higher 20 percent rating is not warranted under this Code. The VA examiner found no instability on examination in June 2011, and the Board finds that this objective medical opinion is more probative than the Veteran's lay statements in this regard. In this regard, the Board notes that she denied any left knee instability or subluxation symptoms on examination in June 2011.

During this period, the evidence reflects that the Veteran had a meniscal tear of the left knee. Considering the left knee disability under Diagnostic Code 5258, pertaining to a dislocated semilunar cartilage, the clinical evidence does not show that the Veteran had a dislocated semilunar cartilage. However, the evidence reflects that the Veteran had a meniscal tear as shown on MRI, she complained of constant pain and instability, and left knee effusion was objectively noted by some examiners. Hence, the Board finds that it is more favorable to rate the Veteran's left knee disability under Diagnostic Code 5258, based on frequent episodes of pain and effusion resulting in limitation of motion of the left knee, and a 20 percent rating is warranted under this Code during the period prior to July 14, 2011, instead of the 10 percent rating formerly assigned under Diagnostic Code 5010. Separate ratings are not warranted under both Diagnostic Code 5258 and a limitation of motion Diagnostic Code, as the clinical evidence reflects that the symptoms due to her residuals of meniscectomy included pain and effusion resulting in decreased mobility. Thus, the Board finds that in this case, separate ratings based on pain with limitation of motion under 5260 and 5258 would constitute impermissible pyramiding under 38 C.F.R. § 4.14, and thus a separate rating is not warranted under Diagnostic Codes 5258 and 5260.

A higher rating in excess of 20 percent is not warranted under any other applicable Diagnostic Code during the period prior to July 14, 2011. Diagnostic Code 5259 is inapplicable during this period as she did not have symptomatic removal of a semilunar cartilage. Diagnostic Codes 5256, 5262, and 5263 are inapplicable during this period as she did not have ankylosis of the left knee, impairment of the tibia and fibula, or genu recurvatum.

In sum, an increased 20 percent rating is granted for the service-connected left knee disability throughout the rating period prior to July 14, 2011, under Diagnostic Code 5258.

Period from September 1, 2011

After a review of all of the evidence of record, the clinical reports do not document that the Veteran's left knee disability was productive of functional impairment consistent with limitation of extension to 15 degrees or more or limitation of flexion to 30 degrees or less as required under Diagnostic Codes 5261 and 5260 for a rating in excess of 10 percent at any time during this portion of the appeal period. In fact, extension was consistently normal (to 0 degrees), and flexion of the left knee was to 105 degrees (with objective evidence of pain at 105 degrees) on VA examination in October 2013, to 130 degrees in October 2016, and to 120 degrees in May 2017.

In October 2013, the examiner indicated that the Veteran had pain and less movement than normal after repetitive motion, but the range of motion findings were unchanged.

In October 2016, there was pain with flexion noted on examination but it did not result in or cause functional loss. In May 2017, the examiner noted that reduced range of motion was present due to pain induced with motion (flexion and extension), functional loss and the Veteran's response to pain. There was pain on weight-bearing. The Veteran stated that her knee was painful constantly. There was no additional functional loss or limitation of motion after repetitive use testing.

Even considering the effects of pain on motion, there is no probative evidence that pain reduced motion during this period to the extent required for an increased rating in excess of 10 percent under the limitation of motion codes. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In essence, the medical reports on file do not demonstrate the level of loss of motion (in either flexion or extension) necessary for either a higher rating or separate ratings based on limitation of flexion or extension at any time during this portion of the appeal period. The current 10 percent rating is proper for the left knee disability based on X-ray evidence of arthritis with painful motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5010; Lichtenfels, supra; VAOPGCPREC 9-98. 

The Board will also consider whether an increased rating is warranted under other relevant Diagnostic Codes. During this period, considering the left knee disability under Diagnostic Code 5257, pertaining to instability, the Board finds that the evidence does not show moderate recurrent subluxation or lateral instability, and thus a higher rating is not warranted under this Code. VA examiners found no instability of the left knee on multiple examinations in October 2013, October 2016, and May 2017. Objective findings do not support her statements regarding instability, and her unsupported lay assertions do not outweigh the referenced findings which are consistent across multiple examinations and different examiners.

A higher rating is not warranted under Diagnostic Code 5258, as the clinical evidence does not show that the Veteran has a dislocated semilunar cartilage, and her prior tear has been repaired. 

A higher rating in excess of 10 percent is not warranted under any other applicable Diagnostic Code during the period from September 1, 2011. Diagnostic Code 5259 is inapplicable during this period as she did not have symptomatic removal of a semilunar cartilage. Diagnostic Codes 5256, 5262, and 5263 are inapplicable during this period as she did not have ankylosis of the left knee, impairment of the tibia and fibula, or genu recurvatum.

In sum, an increased rating in excess of 10 percent for the service-connected left knee disability during the period from September 1, 2011 is denied.

The evidence during this portion of the rating period is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). 

ORDER

Prior to October 21, 2016, a higher 50 percent rating for adjustment disorder with depressed mood is granted, subject to the laws and regulations governing the payment of monetary benefits.

From October 21, 2016, a higher rating in excess of 30 percent for adjustment disorder with depressed mood is denied.

An increased rating in excess of 20 percent for residuals of a left ankle fracture with Achilles tendonitis is denied.

An increased rating in excess of 30 percent for the right knee, status post TKR is denied.

Prior to July 14, 2011, a higher 20 percent rating for the left knee disability is granted, subject to the laws and regulations governing the payment of monetary benefits.

From September 1, 2011, an increased rating in excess of 10 percent for the left knee disability is denied.



REMAND

Although the Board regrets the additional delay, further development is necessary prior to adjudication of the claim for a higher rating of the service-connected back disability.
 
The prior March 2014 remand directed that the Veteran be provided a VA examination to determine the severity of her service-connected back disability. The Veteran was provided a VA examination of the back in September 2014. 

The Board notes that in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) the Court held that to be adequate examination reports must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that in addressing the nature of any flare-ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. In light of the foregoing and the fact that the September 2014 VA examination report does not fully satisfy the requirements of Correia, Sharp and 38 C.F.R. § 4.59, the Veteran should be afforded a new VA examination before a decision can be rendered on her claim.

Additionally, a September 2017 VA outpatient treatment record indicates that the Veteran complained of low back symptoms after a fall in May 2017. A magnetic resonance imaging (MRI) was performed, and showed lumbar spondylosis. On remand, the examiner should determine the current level of severity of her service-connected back disability. 38 C.F.R. § 4.2; see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The VA examiner should review the claims file in connection with the examination, including the additional medical records added to the file after the last VA examination.

The issues of entitlement to a TDIU and basic eligibility to DEA prior to February 19, 2009 are intertwined with the remanded issue, and appellate action is deferred.

Accordingly, the case is REMANDED for the following action:

1. Obtain updated VA medical records of treatment or evaluation of the lumbar spine disability, and associate them with the claims file.

2. Schedule the Veteran for VA lumbar spine examination to determine the current nature and severity of her service-connected lumbar spine disability (chronic low back strain with mild degenerative disc disease). 

The examiner should review the claims file, including all relevant medical records, and perform all appropriate tests and diagnostics, including range of motion testing and neurological evaluation. All pertinent symptomatology and findings must be reported in detail. 

(a) The examiner is asked to report the range of motion measurements in degrees. Range of motion should be tested actively and passively, in weight bearing if possible, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: 

(1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. 

If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on the Veteran's reports. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

(b) The examiner should note all symptomatology associated with the lumbar spine, if found, as well as the functional impact of the lumbar spine disability. 

A complete rationale should be provided for any opinion offered. If an opinion cannot be provided without speculation, the examiner should state why this is so.

3. After completing the above and any other development necessary, readjudicate the claims. If the benefits sought on appeal remains denied, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs