Citation Nr: 19178927 Decision Date: 10/16/19 Archive Date: 10/16/19 DOCKET NO. 19-23 175 DATE: October 16, 2019 ORDER As new and material evidence has been received, the petition to reopen the claim for service connection for sleep apnea is granted. Entitlement to a disability rating in excess of 10 percent for a left ankle disability under Diagnostic Code 5271 is denied. From February 20, 2018, a separate 10 percent rating for left ankle disability under Diagnostic Code 5262 is granted. Entitlement to a disability rating in excess of 10 percent for urethral stricture is denied. Entitlement to a disability rating in excess of 10 percent for a left knee disability is denied. Entitlement to a disability rating in excess of 10 percent for a right knee disability is denied. Entitlement to a separate 10 percent disability rating for left knee instability under Diagnostic Code 5257 is granted. Entitlement to a separate 10 percent disability rating for right knee instability under Diagnostic Code 5257 is granted. Prior to April 30, 2019, entitlement to a disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is denied. From April 30, 2019, entitlement to a PTSD rating in excess of 70 percent is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for sleep apnea that was denied by a December 2012 rating decision. The Veteran was notified of this decision and his appellate rights and did not file a timely NOD or submit new and material evidence within 1 year. 2. Evidence received since the December 2012 rating decision is not cumulative or redundant of evidence previously considered and it relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea. 3. The Veteran’s left ankle disability manifested as moderate limitation of motion, and from February 20, 2018, the Veteran’s left ankle manifested as slight instability. 4. The Veteran’s urethral stricture disability manifested as urinary hesitancy, flow, and stream, with daytime voiding every 2 to 3 hours, and nighttime awakening to void 2 times per night. 5. The Veteran’s left knee disability manifested as painful limited flexion and slight instability. 6. The Veteran’s right knee disability manifested as painful limited flexion and slight instability. 7. Prior to April 30, 2019, the Veteran’s PTSD manifested as occupational and social impairment with reduced reliability and productivity. 8. From April 30, 2019, the Veteran’s PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, judgment, thinking or mood. CONCLUSIONS OF LAW 1. The December 2012 rating decision that denied the Veteran’s claim for service connection for sleep apnea is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.202, 20.302, 20.1103 (2018). 2. The evidence received since the December 2012 rating decision is new and material and the claim for service connection for sleep apnea is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for a left ankle disability rating in excess of 10 percent have not been met. 38 U.S.C. § §§ 1155, 5107 (2012); 38 C.F.R. § §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2018). 4. From February 20, 2018, the criteria for a separate 10 percent rating for slight left ankle instability have been met. 38 U.S.C. § §§ 1155, 5107 (2012); 38 C.F.R. § §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5262 (2018). 5. The criteria for a rating in excess of 10 percent for the Veteran’s urethral stricture disability have not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1-4.16, 4.115a, 4.115b, Diagnostic Code 7518 (2018). 6. The criteria for a disability rating in excess of 10 percent for a left knee disability pursuant to Diagnostic Code 5260 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2018). 7. The criteria for a disability rating in excess of 10 percent for a right knee disability pursuant to Diagnostic Code 5260 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2018). 8. The criteria for a separate 10 percent disability rating for left knee instability pursuant to Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5257 (2018). 9. The criteria for a separate 10 percent disability rating for right knee instability pursuant to Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5257 (2018). 10. Prior to April 30, 2019, the criteria for a rating in excess of 50 percent for the Veteran’s PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2018). 11. From April 30, 2019, the criteria for a disability rating in excess of 70 percent for the Veteran’s PTSD have not been met during the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In his Form 9, the Veteran made a generic assertion that he preserved for appeal any errors made in discharging the duty to assist, but did not specify what errors he believed were made. Neither the Veteran nor his attorney have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. In a December 2012 rating decision, the RO denied service connection for sleep apnea. There was no evidence in the Veteran’s service records that he was treated for sleep apnea in service or had symptoms of sleep apnea in service. Thus, the RO denied service connection as there was no evidence of nexus to service. The Veteran was notified of the December 2012 rating decision and his appeal rights in January 2013; however, he did not file an appeal. There was also no new and material evidence received within one year of the January 2013 notification of the decision. Thus, the December 2012 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2018). The Board acknowledges that after the December 2012 denial, service personnel records were obtained. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. Service records related to a claimed in-service event, injury, or disease are relevant service department records. 38 C.F.R. § 3.156(c)(1) (2018). New and material evidence is not needed to reopen his previously denied claim and it will be reviewed on a de novo basis. However, in this case, the additional service personnel records are not relevant because they do not address medical issues, including sleep or breathing symptoms, and do not contain lay statements relating to sleep or breathing. Therefore, the Board finds that the provisions of 38 C.F.R. § 3.156(c)(1) do not apply to the facts of this particular case because the additional service personnel records are not relevant to the claim. The Veteran filed a petition to reopen his sleep apnea service connection claim in April 2017. He raised the theory that his sleep apnea was related to his service-connected PTSD. Although “a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C. § 7104(b) (2012)],” any evidence supporting the Veteran’s new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Consequently, in February 2018, the Veteran submitted a medical article that discussed the link between sleep apnea and psychiatric disorders. This new evidence triggers the need for a subsequent VA opinion. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The claim is therefore reopened. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Left Ankle The Veteran’s left ankle disability is currently rated under Diagnostic Code 5271, limited motion of the ankle. 38 C.F.R. § § 4.71a (2018). Under this Diagnostic Code a 10 percent rating is warranted with moderate limited motion and a 20 percent rating is warranted under marked limited motion. Standard range of motion of an ankle is to 20 degrees of dorsiflexion and to 45 degrees of plantar flexion. 38 C.F.R. § § 4.71 Plate II. While the schedule of ratings does not provide information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in the VA Adjudication Procedures Manual (M21-1). The M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See M21-1, III.iv.4.A.3.k. The M21-1 is not binding on the Board. However, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). In finding that the Veteran’s limitation of ankle motion is not more accurately defined as “marked,” the Board considers VA’s proposed change to Diagnostic Code 5271, which was published in February 2003. See 68 FR 6998. In the proposed regulation, VA noted that it hired an outside consultant to recommend changes “…to ensure that the schedule uses current medical terminology and unambiguous criteria, and that it reflects medical advances that have occurred since the last review. The consultant convened a panel of non-VA specialists to review the portion of the rating schedule dealing with the musculoskeletal system in order to formulate recommendations.” Id. Regarding Diagnostic Code 5271, VA noted that the terms “marked” and “moderate” are subjective and proposed to substitute more objective criteria that was recommended by the consultants. Specifically, it was proposed to assign a 20 percent rating if there was less than 5 degrees passive dorsiflexion or less than 10 degrees passive plantar flexion, and a 10 percent rating if there was less than 15 degrees of passive dorsiflexion or less than 30 degrees passive plantar flexion. Id. at 7018. It was noted that this change would promote consistent evaluations. Id. The Board finds the explanation of the proposed regulation to be persuasive. Significantly, VA consulted with specialist medical professionals who recommended objective criteria based upon current medical knowledge with the specific intent of ensuring more consistent outcomes for veterans. Then, in August 2017, VA again proposed to change Diagnostic Code 5271. See 82 FR 35719. VA noted that the criteria set forth in Diagnostic Code 5271 are “subjective and the terminology is vague, resulting in inconsistent evaluations.” VA proposed this time to define “marked” as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion, and “moderate” as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. Id. at 35723. VA noted that, “[a]s VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel.” Id. The Board finds the explanation of the proposed regulation to be persuasive because again, VA is expressing its intent to codify a policy that was employed to ensure more uniformity among its rating personnel. Additionally, the proposed criteria were similar to those proposed in 2003, with the exception that the word “passive” was not included. In Dorland’s Illustrated Medical Dictionary, 1592 (32nd ed. 2012), range of motion redirects the reader to “exercise.” Passive exercise “is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient’s own body.” Id., at 658. Active exercise is “motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part.” Id. It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran’s joint farther than he would be able to move it on his own. Therefore, the omission of the word “passive” from the 2017 proposed regulation is likely more favorable to veterans, which causes the Board to be more inclined to employ its use. The Board does not consider the M21-1 provision to be binding, but finds the reasoning employed in the 2003 and 2017 proposed rules to be highly persuasive in support of a finding that the ranges of motion listed in the M21-1 are appropriate, given that they are nearly identical to the 2003 proposal that was made in consultation with specialist medical professionals. The Board also considers whether an increased rating is warranted under other Diagnostic Codes pertaining to the ankle. Diagnostic Code 5270 contemplates ankylosis of the ankle. A 20 percent evaluation is warranted for ankylosis of the ankle in less than 30 degrees of plantar flexion. A 30 percent evaluation is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. A 40 percent evaluation is warranted when there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § § 4.71a. The Veteran retains the ability to move his ankle, therefore he does not have ankylosis. Because the Veteran’s ankle disability is based upon limitation of motion the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss that the Veteran may have sustained by virtue of other factors: less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. § §§ 4.40, 4.45 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran received a VA examination in March 2017. He stated that he had trouble with prolonged walking and standing that caused flareups. His range of motion was normal; dorsiflexion to 20 degrees and plantar flexion to 45 degrees, both with pain. The Veteran did not experience change in range of motion after repetition and did not experience functional loss due to any of the DeLuca factors. He also did not experience instability. He did not have tenderness, pain on non-weight bearing, or pain on passive range of motion testing. His strength was normal at 5/5 and he did not have atrophy or ankylosis. His most recent VA examination was in April 2019. The Veteran continued to report issues with prolonged walking and standing. He denied having flare ups. He experienced reduced range of motion; his dorsiflexion was to 15 degrees and plantar flexion was to 35 degrees, both with pain. He did not have any change in his range of motion after repetition nor experience any additional functional loss. He did report using a brace occasionally. His plantar flexion strength was normal at 5/5, but his dorsiflexion strength was reduced to 4/5 (active movement against some resistance). There was no pain on passive range of motion or non-weight bearing use. He did not report instability. His right ankle was normal in all respects. The record also contains lay evidence. In February 2018, the Veteran’s attorney noted the Veteran wore a brace and had trouble with stairs. The Veteran also felt that his ankle was unstable and felt a sharp, needle like pain, in his left ankle. The Board finds that a disability rating in excess of 10 percent under Diagnostic Code 5271 is not warranted. The Veteran had normal range of motion at his March 2017 VA examination and his April 2019 examination showed that his plantar flexion was 0 to 35 degrees with pain and his dorsiflexion was 0 to 15 degrees with pain. The Veteran had abnormal limited range of motion, but the evidence does not show that he had marked limitation of motion. In support of this finding, the Board notes that the Veteran could perform repetitive motion with no additional loss in range of motion. Though he experienced flare-ups, they also did not cause an additional decrease in his range of motion. These factors weigh against a finding that the severity of the Veteran’s limitation of ankle motion is more accurately described as “marked.” Significantly, he retains three quarters of both his plantar and dorsiflexion. Additionally, for the reasons discussed above, the Board finds the objective criteria proposed by VA as a revision to Diagnostic Code 5271 to be highly persuasive. The Veteran’s dorsiflexion was not less than 15 degrees, and his plantar flexion was above 30 degrees, which is above the cutoff for what is described as “moderate” in the proposed regulation and later in the M21-1, and again in a second proposed regulation. Although the Veteran had limited painful motion, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); 38 C.F.R. § § 4.40 (2018). Therefore, even when considering functional limitations due to pain and other factors identified in 38 C.F.R. § §§ 4.40, 4.45, the Board finds that the Veteran’s functional loss from his left ankle disability does not equate to more than the disability picture contemplated by the 10 percent rating. 38 C.F.R. § § 4.71a (2018). Diagnostic Code 5262 contemplates impairment of the tibia and fibula. A 40 percent rating is assigned with nonunion, with loose motion, requiring brace. With malunion, 30, 20, and 10 percent ratings are warranted if there is marked, moderate, or slight knee or ankle disability, respectively. In a February20, 2018 statement and at his April 2019 VA examination, the Veteran reported occasional use of a brace. Ankle instability is not contemplated by Diagnostic Code 5271, so the Board finds that a separate 10 percent rating under Diagnostic Code 5262 is warranted beginning February 20, 2018, the date his first assertion was received. Prior to that date, it was not ascertainable that his left ankle had instability. However, a 20 percent rating is not warranted. As previously stated, there was no instability noted in any of his examinations, but the Board acknowledges the Veteran occasional use of an ankle brace which shows evidence of instability. Nevertheless, the record lacks lay or medical evidence to support a higher rating for moderate ankle instability. Aside from stating that he uses a brace, the Veteran has not provided lay descriptions of his instability of the left ankle. Therefore, his instability is most accurately described as slight. 2. Urethral Stricture The Veteran’s urethra stricture is rated under Diagnostic Code 7518. 38 C.F.R. § 4.115b (2018). This Diagnostic Code employs the rating criteria for voiding dysfunction, which can be evaluated as urine leakage. See 38 C.F.R. § 4.115a (2018). Regarding urine leakage, a 20 percent rating is warranted for the requiring of wearing absorbent materials that must be changed less than 2 times per day. A 40 percent rating is warranted when absorbent materials must be changed 2 to 4 times per day. A 60 percent rating is warranted when the use of an appliance is required, or absorbent materials must be changed more than 4 times per day. Voiding dysfunction can also be rated on the basis of urinary frequency or obstructed voiding. Id. Urinary frequency with a daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent evaluation. Urinary frequency with a daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent evaluation. Urinary frequency with a daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent evaluation. 38 C.F.R. § 4.115a (2018). Obstructed voiding involving symptomatology with or without stricture disease requiring dilatation one to two times per year warrants a noncompensable evaluation. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; and (4) stricture disease requiring periodic dilatation every two to three months requires a 10 percent evaluation. A 30 percent evaluation is warranted when there is urinary retention requiring intermittent or continuous catheterization. Id. At his March 2017 VA examination he reported that his voiding dysfunction resulted in hesitancy but not urinary leakage. The examiner noted that the Veteran did not have urine leakage, did not use an appliance, and did not have increased urinary frequency. The examiner noted that the Veteran’s urinary hesitancy was not marked. He had stricture disease that required dilatation 1 to 2 times per year. At his most recent VA examination in April 2019 he reported urinary frequency, retention, hesitation, weak stream, and leakage. The examiner noted that he had leakage that did not require the use of absorbent materials. The Veteran stated he had nighttime awakening to void 2 times per night and a daytime voiding interval between 2 and 3 hours. He continued to report experiencing hesitancy and a weak, slow stream. The examiner noted that his hesitancy, slow stream, and weak stream were not marked, markedly slow, or markedly weak, respectively. Accordingly, the Board finds a rating in excess of 10 percent is not warranted. The Board considers the Veteran’s credible lay statements and the medical evidence of record showing his frequent voiding and hesitancy, weak stream, and slow stream. Nevertheless, the evidence does not show that the Veteran has symptoms contemplated by a 20 percent rating. The Veteran does not wear absorbent material, his daytime voiding is not between 1 to 2 hours, and his nighttime voiding was not 3 to 4 times per night. Furthermore, a 30 percent rating for obstructed voiding was not warranted because he did not require intermittent or continuous catherization. All the Veteran’s symptoms are captured by the 10 percent rating. See 38 C.F.R. § 4.115a (2018). 3. Left and Right Knees The Veteran’s right and left knee disabilities are rated under Diagnostic Code 5260 for limitation of flexion of the leg. Under this Diagnostic Code, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a (2018). Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II (2018). The Board will also consider Diagnostic Code 5261 for limitation of extension of the leg. Under this Diagnostic Code, a noncompensable rating is warranted when extension is limited to 5 degrees. A 10 percent rating is warranted when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 50 degrees. 38 C.F.R. § 4.71a (2018). Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II (2018). Diagnostic Codes 5260 and 5261 are for limitation of motion. They provide criteria for limitation of flexion and extension of the leg. When a rating of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors. Those factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2017); Johnston v. Brown, 10 Vet. App. 80 (1997). The Veteran has arthritis in the right knee. Under Diagnostic Code 5003, the disability is rated based upon limitation of motion of the affected joint. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2018). The Board finds the Veteran is appropriately rated for his limitation of motion under Diagnostic Code 5260. Diagnostic Code 5003 is less favorable for the right knee because there is no probative medical or lay evidence of record to show that he has incapacitating exacerbations of his arthritis, which is required for a 20 percent rating. The Veteran has not stated that he has incapacitating exacerbations and the medical evidence does not support this conclusion. The Board must also consider other applicable Diagnostic Codes. Thus, the Board will consider Diagnostic Code 5257, under which a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2018). Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the factors set forth in 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply. DeLuca, 8 Vet. App. 202. The Veteran does not have ankylosis, a meniscus condition, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5258, 5259, and 5263 do not apply. 38 C.F.R. § 4.71a (2018). In September 2016, the Veteran was treated for knee pain. He reported that his pain was under his patella, worse on the right than the left. He stated that his pain was worse when using stairs or riding his bicycle. He also had difficulty putting on shoes and socks. Upon examination, there was no effusion or swelling and no laxity in the ligaments. He had decreased flexion from tight quads. The treating physician did not specify whether flexion was measured. His strength was normal. The Veteran received a VA examination in March 2017. He reported knee pain with climbing ladders, squatting, prolonged standing, and prolonged walking. His active range of motion for flexion and extension for both knees was normal, but pain was noted with flexion. The pain with flexion did not cause functional loss. He also did not experience change in his range of motion after repetitive testing nor were his knees negatively impacted by weakened movement, excess fatigability, incoordination, pain on movement, or swelling. He stated that he had flare ups which he described as pain when standing or walking for too long. The examiner noted that pain, weakness, fatigability, or incoordination would not significantly limit functional ability during a flare up. His muscle strength was normal and the examiner found that he did not have atrophy or ankylosis. His most recent VA examination was in April 2019. He reported occasional swelling in both knees, that his knees gave out occasionally, and his pain was out 7 out of 10. He did not have flare-ups. He also reported increased pain and weakness and difficulty using stairs and bending his knees to tie his shoes. He also experienced decreased range of motion. His right knee flexion was to 100 degrees, and his extension was normal at 0 degrees. He had pain on flexion. His left knee flexion was to 110 degrees, and his extension was normal at 0 degrees. He had pain on flexion. The examiner stated that there was objective evidence on passive range of motion testing bilaterally, and no evidence of pain in non-weightbearing bilaterally. Like with the last examination, he did not experience change in range of motion after repetition. While the Veteran’s knees tested normal on all stability tests, he reported using braces for his knees regularly. His strength was 4/5 (active movement against some resistance) for both flexion and extension, bilaterally. He did not have atrophy or ankylosis. In a February 2018 statement from the Veteran’s attorney, he reported the Veteran’s knees popped and grinded. The Veteran also had issues with instability and felt that his knees may collapse. At worst, the Veteran is unable to flex his right knee beyond 100 degrees and his left knee beyond 110 degrees, as noted by his April 2019 examination. The Board notes prior to this examination, the Veteran’s flexion for both knees was normal. This range of motion is more closely described by the criteria for a noncompensable rating. At no point during the appeal period has the Veteran’s flexion for either knee been limited to 60 degrees. Nevertheless, it is clear from the Veteran’s description of his symptoms that there is limited motion and painful motion. The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). As a result, the RO assigned a 10 percent rating for painful flexion under Diagnostic Code 5260. However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40 (2018). The medical evidence of record does not support a finding that the Veteran has some functional loss in his knees due to pain such that his flexion is limited to 30 degrees in either knee, which is required for the 20 percent rating. The Board considers the Veteran’s credible report of increased knee pain and issues with prolonged standing, walking, and climbing; however, he has not reported additional loss in function. The VA examiners specifically considered functional loss in the form of painful motion, weakness, stiffness, swelling, decreased endurance, and fatigability in the evaluation of the Veteran’s knee disabilities. Both the March 2017 and April 2019 VA examiners noted that these factors have no additional functional impact on his knees. Thus, even considering the Veteran’s report of increased pain, his range of motion for both knees is still not contemplated by a 20 percent rating, which requires that flexion be limited to 30 degrees. Separate ratings are available for limitations of flexion and extension under Diagnostic Codes 5260 and 5261. VAOPGCREC 9-2004 (2004). The Veteran’s VA examinations showed that his extension was normal with no evidence of pain on examination. Additionally, the Veteran is already in receipt of a 10 percent rating for painful limited motion of each knee joint under Diagnostic Code 5260 based upon 38 C.F.R. § 4.59. Diagnostic Code 5261 contemplates the same joint. Therefore, a separate rating, even if his extension were painful, is not warranted because he is already receiving the minimum 10 percent rating for each knee joint under Diagnostic Code 5260. Additionally, based on the evidence of record the Board finds a separate rating for slight instability is warranted under Diagnostic Code 5257 for each knee. In February 2018, the Veteran reported instability and that he felt like he might collapse. Additionally, at his April 2019 VA examination, the Veteran reported that his knees gave out occasionally and he regularly used knee braces. The Veteran’s complaints are competent and credible. The Board finds that this constitutes slight instability. However, instability was not clinically found at his VA examinations or noted in his medical records. At each VA examination, the Veteran’s knees have tested normal for anterior instability, posterior instability, medial instability, and lateral instability. Additionally, a history of instability or subluxation was denied by all examiners. His medical records do not show complaints of or findings of instability, and the Veteran has not provided a lay description of the frequency, severity, and duration of any instability. Therefore, his disability picture is most accurately described as slight as opposed to moderate. See 38 C.F.R. § 4.71a (2018). 4. PTSD The Veteran’s PTSD is evaluated under Diagnostic Code 9411. 38 C.F.R. § 4.130 (2018). PTSD is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2018). Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. Prior to April 30, 2019 The Veteran received a VA examination in March 2017. The Veteran was in a dating relationship. He maintained a relationship with his adult children that he described as “good, but could be better.” He was close with his mother and three out of his four sisters. He spent time with one friend and stayed in contact with other friends who lived in New York. The Veteran worked for the Federal Bureau of Prisons for the past 24 years, with no issues on his job. His PTSD symptoms included anxiety, chronic sleep impairment, hyper alertness, and feelings of detachment from others. He also reported feeling rigid and regimented, wanting to avoid war-related materials, and feelings of prejudice. The examiner stated that the Veteran’s PTSD caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. This describes the 10 percent criteria. The examiner also described the Veteran’s PTSD as quiescent. In April 2018, the Veteran’s fiancé provided a written statement describing the Veteran’s PTSD symptoms. She reported the Veteran was paranoid, anxious, moody, and irritable. When he was in a depressive state, he would become withdrawn and argumentative. Though he was a social person, he would isolate himself at events. She also reiterated that the Veteran had issues sleeping and was hypervigilant. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. The Veteran has remained at his job without issues. Furthermore, he has maintained positive social relationships with his fiancé, children, and friends. The Board finds that most of the Veteran’s symptoms are contemplated by the 50 percent rating criteria of disturbances of motivation and mood, such as his paranoia, depression, and hypervigilance. The Board concludes, however, that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran has anxiety but does not have it of the severity that it is more accurately described as near-continuous disturbances in his mood that impact his ability to function independently. As noted above, the Veteran has maintained his romantic relationship, friendships, familial relationships, and his job. Accordingly, the evidence does not show that his PTSD has caused an inability to establish and maintain effective relationships causing occupational and social impairment, as contemplated by the 70 percent rating. Consequently, the preponderance of the evidence shows that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 50 percent rating. From April 30, 2019 At the Veteran’s most recent VA examination in April 2019, he reported additional symptoms. The Veteran stated that he had a short temper with his partner and his relationship with his children was strained. He continued to have a good relationship with his siblings. He also reported having a small group of friends, but he no longer participated in his motorcycle group because of his reckless driving. He started having issues at work. He had problems with his supervisor, outbursts at work, and was told that he needed to be more tactful in communicating his concerns. He continued to suffer from the same symptoms as previously reported, but also noted he had concentration issues, memory problems, reckless/self-destructive behaviors, and difficulty in establishing and maintaining good work relationships or adapting to stressful situations. The examiner concluded that the Veteran’s PTSD symptoms caused occupational and social impairment with deficiencies in most areas, which is contemplated by the 70 percent criteria. The Board acknowledges the VA examination shows worsening in the Veteran’s PTSD symptoms. Nevertheless, the Board finds an increase in his disability rating to 100 percent is not warranted. The evidence still does not show the Veteran has both total occupational and total social impairment. “Total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). As noted by the examiner, he maintains many positive social relationships. Furthermore, while he has had some issues at work, he remains employed and thus his PTSD has not caused total occupational impairment. This does not support a finding that he is completely and utterly both totally socially and totally occupationally impaired. Therefore, while the Veteran has reported additional PTSD symptoms, his overall disability picture from his PTSD does not more closely approximate a 100 percent disability rating. 38 C.F.R. § 4.7, 4.130 (2018). REASONS FOR REMAND The Veteran has sleep apnea and is service-connected PTSD. The Veteran’s statement and medical article he provided meet the “low” threshold needed to determine whether evidence indicates that there “may” be a nexus between the two. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The Veteran received a VA examination in March 2017 concerning his sleep apnea and PTSD, but when the examiner provided the opinion the medical article submitted but the Veteran was not part of the file. Accordingly, an addendum opinion is necessary that considers the evidence submitted by the Veteran. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate clinician to provide an addendum opinion for his sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination of the Veteran is only necessary if deemed so by the clinician. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: 1. The Veteran’s lay assertion that his sleep apnea to his service-connected PTSD. 2. The medical article submitted by the Veteran in February 2018 linking sleep apnea to psychiatric disorders. The clinician must provide opinions as to the following: 1. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea began during active service or is related to an incident of service. 2. Whether it is at least as likely as not that the Veteran’s sleep apnea was proximately due to or the result of his service-connected PTSD. 3. Whether it is at least as likely as not that the Veteran’s sleep apnea was aggravated beyond its natural progression by his service-connected PTSD. The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. 2. Then, readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.