Citation Nr: 20036712 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 11-28 942 DATE: May 28, 2020 ORDER Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected disabilities is granted. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia patella, medial meniscus tear and chondromalacia of the right knee medial femorotibial cartilage is denied. Entitlement to a disability rating in excess of 10 percent for residuals of a right knee tibial fracture is denied. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral dysfunction is denied. Entitlement to a compensable disability rating for right carpal tunnel syndrome prior to May 6, 2013 and in excess of 10 percent thereafter. Entitlement to a disability rating in excess of 30 percent for left carpal tunnel syndrome. REMANDED Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right knee disabilities is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. With resolution of reasonable doubt, the Veteran’s psychiatric disorder, diagnosed as depressive disorder and bipolar disorder, is aggravated by her service-connected disabilities. 2. The Veteran’s right knee chondromalacia patella, medial meniscus tear and chondromalacia of the right knee medial femorotibial cartilage does not result in flexion limited to 45 degrees or less or extension limited to 10 degrees or more. 3. The Veteran’s residuals of right knee tibial fracture do not cause malunion with moderate knee or ankle disability. 4. The Veteran’s left knee patellofemoral dysfunction does not result in flexion limited to 45 degrees or less or extension limited to 10 degrees or more. 5. Prior to May 6, 2013, the Veteran’s right carpal tunnel syndrome was not manifested by incomplete mild paralysis of the median nerve. 6. From May 6, 2013, the Veteran’s right carpal tunnel syndrome was not manifested by incomplete moderate paralysis of the median nerve. 7. Throughout the period on appeal, the Veteran’s left carpal tunnel syndrome was not manifested by incomplete severe paralysis of the median nerve. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, diagnosed as depressive disorder and bipolar disorder, have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a disability rating in excess of 10 percent for right knee chondromalacia patella, medial meniscus tear and chondromalacia of the right knee medial femorotibial cartilage have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257-5003. 3. The criteria for a disability rating in excess of 10 percent for residuals of a right knee tibial fracture have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5299-5626. 4. The criteria for a disability rating in excess of 10 percent for left knee patellofemoral dysfunction have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257-5003. 5. The criteria for a compensable disability rating for right carpal tunnel syndrome prior to May 6, 2013, and in excess of 10 percent thereafter have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8515. 6. The criteria for a disability rating in excess of 30 percent for left carpal tunnel syndrome have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from January 2005 to July 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal of September 2010 and March 2011 rating decisions. In February 2018, the Board restored a 30 percent disability rating for left carpal tunnel syndrome and reopened the claims of entitlement to service connection for depressive disorder (currently characterized as psychiatric disorder), for a right hip disability and for a lumbar spine disability. The reopened claims, along with the claims seeking increased ratings for right and left carpal tunnel syndrome, right knee and left knee disabilities and entitlement to a TDIU were remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310(a). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a psychiatric disorder, diagnosed as depressive disorder and bipolar disorder, to include as secondary to service-connected disabilities The evidence of record reflects that the Veteran has been diagnosed as having depressive disorder and bipolar disorder. In an August 2007 VA examination report, the examiner opined that the Veteran’s depressive disorder was not caused by or a result of her service-connected right knee disability. The examiner found that there was no evidence of psychiatric complaints, findings, or treatment prior to active service, during active service, or within one year of discharge from active service. Rather, the Veteran sought psychiatric care in 2007, two years after her military discharge and after her ex-husband became ill and subsequently died. In an October 2010 private letter, the Veteran’s treating clinician stated that the Veteran’s back, knee and carpal tunnel disabilities had all resulted in restriction of daily activities and social functioning. As a consequence, the Veteran presented with frustration, anxiety, irritability, and a decrease interest and pleasure in most activities. Following a VA psychiatric examination in August 2019, the examiner noted that factors such the Veteran’s problems with ex-husband and death could be related to her mental health diagnosis. However, the examiner also stated that other factors such as medical or physical conditions (to include right and left carpal tunnel syndrome, right knee chondromalacia patella, medial meniscus tear, right knee tibial fracture and left knee patellofemoral dysfunction) can worsen symptoms of bipolar disorder or make treatment less successful. Taking all the reports into account, the Board concludes that the evidence is in relative equipoise. The evidence indicates that the Veteran’s service-connected disabilities aggravate her psychiatric disorder. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran’s favor. Accordingly, as the benefit-of-the-doubt rule is for application, the Board finds that the grant of service connection for a psychiatric disorder, diagnosed as depressive disorder and bipolar disorder, is warranted. Increased Rating Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 2. Right Knee and Left Knee The Veteran contends that her service-connected bilateral knee disabilities warrant higher ratings than what is assigned. The Veteran is rated at 10 percent for right knee chondromalacia patella, medial meniscus tear and chondromalacia of the right knee medial femorotibial cartilage from August 1, 2005 under Diagnostic Code 5257-5003; 10 percent for right knee tibial fracture from August 2005 under Diagnostic Code 5299-5262; and 10 percent for left knee patellofemoral dysfunction from November 18, 2008 under Diagnostic Code 5257-5003. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated based on limitation of motion under 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. If there is limitation of motion but it is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion to be combined, not added. If there is no limitation of motion, a 10 percent rating applies if there is X-ray evidence that two or more major joints or two or more minor joint groups are involved. A 20 percent rating applies if 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. Diagnostic Code 5257 provides that an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability, an evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. Diagnostic Code 5260 pertains to limited flexion of the knee. Flexion limited to 60 degrees is noncompensable. A 10 percent rating applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees. A 30 percent rating applies when flexion is limited to 15 degrees. Diagnostic Code 5261 pertains to limited extension. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating when there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum rating of 40 percent for nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71a. 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. On VA examination in August 2006, there was tenderness in the medial aspect of the right knee above and below patella level. There was mild instability medially. There was pain when the patella was pressed. Extension of the right knee was to 0 degrees. Flexion was to 140 degrees. On VA examination in November 2008, range of motion of both knees was from 0 to 140 degrees. There was pain in the last 30 degrees. There was no functional loss. There was positive grind test bilaterally. There was no instability of either knee. McMurray’s test was positive on the right side. Diagnostic testing revealed bone marrow contusion of the right knee tibia. The diagnoses were right knee chondromalacia patella, medial meniscal tear at right knee, bone marrow contusion in the right knee tibia and left knee patellofemoral dysfunction. On VA examination in February 2010, examination of the right knee revealed crepitation and tenderness. There were no clicks or snaps. There was grinding of the right knee. There was no instability. There was subpatellar tenderness. There was no meniscus abnormality. Right knee flexion was to 130 degrees. Extension was to 0 degrees. Examination of the left knee revealed crepitus and tenderness. There was grinding. There was no instability. There was subpatellar tenderness. There was no meniscus abnormality. Left knee flexion was to 130 degrees. Left knee extension was to 0 degrees. There were no additional limitations after three repetitions of range of motion of either knee. On VA examination in May 2013, right knee flexion was to 130 degrees with evidence of painful motion beginning at 120 degrees. Extension was to 0 degrees with no evidence of painful motion. Post-test flexion was to 120 degrees. Extension was to 0 degrees. Left knee flexion was to 125 degrees with evidence of painful motion beginning at 120 degrees. Extension was to 0 degrees without evidence of painful motion. Post-test flexion was to 120 degrees. Extension was to 0 degrees. There was no instability of either knee. There was no evidence or history of recurrent patellar subluxation/dislocation. There was no history of shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did not have a meniscus condition. She did not use any assistive devices as a normal mode of locomotion. On VA examination in September 2019, flexion of the right knee was to 100 degrees. Extension was to 0 degrees. There was no additional loss of function or range of motion after three repetitions. After repetitive use over time, flexion was to 90 degrees. Extension was to 0 degrees. The Veteran was noted to have a stress fracture of the right lower leg, but it did not affect range of motion of the ankle. She also had a meniscal tear with frequent episodes of joint pain. She used bilateral knee braces for recurrent knee pain with activity. The braces stabilized the knee preventing further damage. Flexion of the left knee was to 110 degrees. Extension was to 0 degrees. There was no additional loss of function or range of motion after three repetitions. There was no evidence of pain with weight-bearing or evidence of crepitus of either knee. After repetitive use over time, flexion was to 90 degrees. Extension was to 0 degrees. There was no ankylosis of either knee. Joint stability tests were normal in both knees. Based on the evidence presented above, ratings higher than 10 percent each for right knee chondromalacia patella, medial meniscus tear and chondromalacia of the right knee medial femorotibial cartilage and for left knee patellofemoral dysfunction are not warranted. Moderate subluxation or moderate lateral instability were not competently identified; therefore, higher ratings under Diagnostic Code 5257 are unsupported by the record. Moreover, a competent report of effusion into the right knee joint and/or left knee joint has not been shown and, thus, a rating under Diagnostic Code 5258 is unavailable for either knee. With respect to limitation of motion, even with consideration of the Veteran’s complaints of painful movement, her reported symptoms has not resulted in limitation of flexion to 45 degrees or less or extension to 10 degrees or more in either knee. Accordingly, the criteria for higher or separate evaluations based on limitation of flexion and/or extension of the right knee and left knee under Diagnostic Codes 5260 and 5261 are not warranted. A rating higher than 10 percent for right knee tibial fracture under Diagnostic Code 5262 is not warranted. Malunion of the tibia and fibula with moderate knee or ankle disability has not been shown on any of the VA examinations. Thus, a higher rating under this Diagnostic Code is not available. As the Veteran has never demonstrated ankylosis of either knee, a rating under Diagnostic Code 5256 is not warranted. In reaching the above conclusions, the Board has considered whether the Veteran has functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). These considerations do not support ratings higher than the ones currently in effect as a result of this decision. 3. Right Carpal Tunnel Syndrome and Left Carpal Tunnel Syndrome The Veteran’s right carpal tunnel syndrome is rated as noncompensable from November 18, 2008 and as 10 percent disabling from May 6, 2013 and her left carpal tunnel syndrome is rated as 30 percent disabling. The Veteran’s bilateral carpal tunnel syndrome is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8515. A 10 percent disability rating is assigned for mild incomplete paralysis of either arm. For moderate incomplete paralysis, a 20 percent disability rating is assigned for a minor arm, and 30 percent for a major arm. For severe incomplete paralysis, a 30 percent rating is warranted for the minor arm, and a 40 percent rating for the major arm. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.3. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran is right hand dominant, therefore, her right arm is her major arm. On VA examination in November 2008, the Veteran was found to have decreased vibration, pain, light touch, and position sense in her left upper extremity, with her ulnar nerve affected. Although the Veteran’s right upper extremity was found normal, she was positive bilaterally for Tinel’s signs and the examiner diagnosed her bilateral carpal tunnel syndrome. The examiner noted that bilateral carpel tunnel syndrome had moderate effects on chores, mild effects on shopping, exercise, and recreation, and prevented participation in sports. On VA examination in March 2010, the Veteran reported that her bilateral carpel tunnel syndrome had worsened since her last examination, and that she had to leave her job as a secretary in August 2009 due to sharp and burning pains in her wrists, left greater than right. Upon examination, the examiner found no motor impairment, but there was bilateral decreased pain and light touch sensation at the 4th and 5th digits, with ulnar nerve affected. Tinel’s sign was positive bilaterally. An associated electrodiagnostic study was normal, with no electrodiagnostic evidence of median nerve entrapment at wrist level and no evidence of left ulnar nerve entrapment at elbow level. The examiner concluded that there was no clinical or electrodiagnostic evidence of bilateral carpal tunnel syndrome. On VA examination on May 6, 2013, the Veteran reported mild constant and intermittent pain, mild/paresthesias/dysesthesias, and moderate numbness in the right upper extremity, with moderate constant and intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in the left upper extremity. Upon examination she was found to have weakened bilateral grip, decreased light touch in her left hand and fingers, with positive Phalen’s and Tinel’s sign on the right upper extremity. The examiner found incomplete mild paralysis bilaterally of the median nerve and incomplete mild paralysis of the left ulnar nerve. On VA examination in September 2019, the Veteran was found to have mild intermittent pain, mild paresthesias and/or dysesthesias and mild numbness of the bilateral upper extremities. Muscle strength testing was normal. Reflex examination was normal. Sensory examination revealed decreased sensation in the right and left hand/fingers. The examiner determined that there was mild incomplete paralysis of the median nerve on the right and left upper extremities. The Board finds that prior to May 6, 2013, a compensable rating for the Veteran’s right carpal tunnel syndrome is not warranted. Specifically, the VA examination reports from November 2008 and from March 2010 reflect that the Veteran does not have incomplete paralysis of the median nerve affecting the right upper extremity. While the Veteran reported having increased symptoms, she did not demonstrate any abnormal reflexes, sensory, or muscle impairment during the November 2008 and March 2010 examinations. Also, from May 6, 2013, a rating higher than 10 percent is not demonstrated for right carpal tunnel syndrome. The evidence does not demonstrate at least moderate impairment of the right median nerve. As discussed above, the May 2013 and September 2019 VA examinations document only mild incomplete paralysis of the right median nerve. There are no objective findings to the contrary. Finally, throughout the rating period on appeal, a rating higher than 30 percent for left carpal tunnel syndrome is not demonstrated. Specifically, there are no objective findings on any of the examination reports that are consistent with at least severe incomplete paralysis which is required for a higher rating. Accordingly, the Board finds that a compensable rating for right carpal tunnel syndrome prior to May 6, 2013, and in excess of 10 percent thereafter, and a rating higher than 30 percent for left carpal tunnel syndrome is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities is remanded. 2. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected disabilities is remanded. The Veteran is seeking service connection for right hip and lumbar spine disabilities, to include as secondary to service-connected disabilities. In a February 2018, the Board found that an August 2007 VA examination report and an October 2010 private clinician’s opinion were inadequate to address the Veteran’s claims. The claims for remanded for further VA examination and opinions. The Veteran underwent VA examinations in September 2019. The examiner provided negative nexus opinions with regard to both the right hip and lumbar spine disabilities on a direct and secondary incurrence basis. The Board, however, finds that the opinions are not adequate because the examiner did not provide sufficient rationale in support of the opinions. Specifically, the examiner cited to numerous medical treatment records, but did not explain the significance of this information or how it informed the examiner’s opinions. Accordingly, further VA opinions are warranted. 3. Entitlement to a TDIU is remanded. The Veteran also seeks entitlement to a TDIU based on her service-connected disabilities. The TDIU claim is inextricably intertwined with the remanded issues herein and the Board’s grant of service connection for a psychiatric disorder in this decision and the pending assignment of the corresponding rating by the AOJ. As such, consideration of the TDIU must be deferred pending implementation of the award granted herein and the remand development requested below. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate examiner; only schedule an examination in this matter if deemed necessary by the examiner to answer the Board’s questions. Following a review of the claims file, the examiner is to answer the following questions: (a) Whether it is at least as likely as not that the Veteran’s right hip sacroiliitis was incurred in service, manifested within one year of discharge from service, or otherwise related to an in-service event, to include any strenuous exercise? (b) If it is determined that the Veteran’s right hip sacroiliitis was not incurred in service, manifested within one year of discharge from service, or otherwise related to an in-service event, then the examiner must opine as to whether it is at least as likely as not that the Veteran’s right hip sacroiliitis is proximately due, the result of, or aggravated by her service-connected bilateral knee disabilities. The examiner is asked to comment on the Veteran’s lay statements concerning onset of hip pain during post-service physical therapy for her lumbar back and service-connected right knee disabilities, as well as the October 2010 letter from the Veteran’s treating clinician. (c) Whether it is at least as likely as not that the Veteran’s lumbar spine disability was incurred in service, manifested within one year of discharge from service, or is otherwise related to an in-service event, to include during the January 2005 fall in which her right knee was injured. (d) If it is determined that the lumbar spine disability was not incurred in service, manifested within one year of discharge from service, or otherwise related to in-service event, then the examiner must opine as to whether it is at least as likely as not that the Veteran’s lumbar spine disability is proximately due to or aggravated by her service-connected bilateral knee disabilities. The examiner is asked to comment on the Veteran’s lay statements concerning onset of back pain in 2005 while in service, the treatment note questioning whether the Veteran’s lumbar spine disability was due to compensation from a knee disability, and the October 2010 letter from the Veteran’s treating clinician. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, 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.