Citation Nr: 20042342 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 10-08 315A DATE: June 23, 2020 ORDER An initial rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee is denied. An initial rating in excess of 10 percent for right knee instability prior to August 25, 2010, and in excess of 20 percent thereafter, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The Veteran’s right knee DJD has been manifested by painful motion, but not to the extent that flexion has been limited to 30 degrees or less. 2. The Veteran’s right knee instability was no more than slight prior to August 25, 2010, and no more than moderate thereafter. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of motion of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260-61. 2. The criteria for a rating in excess of 10 percent prior to August 25, 2010, and in excess of 20 percent thereafter, for instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from November 1988 to April 1994, and in the U.S. Army from February 2003 to August 2003, to include service in Southwest Asia. He also had reserve service. His decorations include the Southwest Asia Service Medal. These matters come to the Board of Veterans’ Appeals (Board) on appeal from April 2008 and July 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its April 2008 rating decision, following a period of return to active duty, the RO assigned a 0 (zero) percent (noncompensable) rating for DJD of the right knee. In a February 2015 rating decision, the RO increased the rating for DJD of the right knee to 10 percent, effective October 4, 2007. In a January 2016 rating decision, the RO continued the rating for DJD of the right knee at 10 percent, and granted service connection for right knee instability, assigning a 10 percent rating prior to August 25, 2010, and a 20 percent rating thereafter. In its July 2016 rating decision, the RO denied service connection for PTSD and generalized anxiety disorder. In a May 2011 Report of General information, it was noted that the Veteran wanted to appear at a Board hearing regarding his claim for an increased rating for his right knee disability. However, he later withdrew that request in July 2011. 38 C.F.R. § 20.704(e). In his September 2018 substantive appeal of the RO’s denial of entitlement to service connection for an acquired psychiatric disorder, the Veteran indicated that he wanted to appear at a Board hearing as to that issue. However, he later withdrew that request as indicated in an April 2020 Report of General Information. 38 C.F.R. § 20.704(e). The Veteran’s claim for service connection for PTSD has been recharacterized to include all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Higher Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During an appeal of a disability rating, either from the initial rating assigned following an award of service connection or on appeal of a subsequent denial of an increased rating, it may be found that there are varying and distinct levels of disability during the pendency of the claim. Staged ratings (different disability ratings during various time periods) are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 1. Entitlement to an initial rating in excess of 10 percent for DJD of the right knee 2. Entitlement to an initial rating in excess of 10 percent for right knee instability prior to August 25, 2010, and in excess of 20 percent thereafter The Veteran’s right knee claims were previously before the Board in December 2014, May 2016, June 2017, and July 2018. In each instance, the claims were remanded for additional records development, and to afford the Veteran adequate examinations for his right knee disability. The Board finds that there has been at least substantial compliance with its prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). At the outset, the Board notes that the Veteran’s right knee DJD is currently rated at 10 percent disabling pursuant to 38 C.F.R. § 4.59, DC 5260, for painful motion of the knee. As stated in the February 2015 rating decision, the current 10 percent rating was assigned based on subjective reports of painful motion during testing on flexion. The Veteran’s right knee instability is rated under DC 5257 for recurrent subluxation or lateral instability, with the severity being found as slight prior to August 25, 2010 (warranting a 10 percent rating), and moderate thereafter (warranting a 20 percent rating). The Veteran seeks higher ratings. DC 5010 instructs the Board to rate traumatic arthritis as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. DC 5003 provides that degenerative arthritis will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. DC 5003 also provides for a 20 percent rating for arthritis where X-ray evidence shows involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. DC 5260 addresses limitation of flexion of the leg. Flexion limited to 60 degrees warrants a noncompensable rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. DC 5261 addresses limitation of extension of the leg. Extension limited to 5 degrees warrants a noncompensable 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. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. Separate ratings may be assigned under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg). VAOPGCPREC 9-2004. Lateral instability and limitation of motion of the knee may be rated separately under DCs 5257 and 5003. VAOPGCPREC 23-97. Under DC 5257, a 10 percent evaluation is assigned for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent disability rating is assigned for severe recurrent subluxation or lateral instability. Further, in Lyles v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that evaluation of a knee disability under the diagnostic codes for recurrent subluxation or instability; limitation of extension; or limitation of flexion does not preclude as a matter of law a separate evaluation of a meniscal disability under Diagnostic Code 5258 or 5259, the diagnostic codes for removal or dislocation of semilunar cartilage. 29 Vet. App. 107, 115-16 (2017). Accordingly, when evaluating the Veteran’s right knee disability, the Board may assign separate ratings for: (1) recurrent subluxation or lateral instability; (2) limitation of flexion; (3) limitation of extension; and (4) symptoms associated with the dislocation or removal of semilunar cartilage. The Veteran was afforded a VA examination in January 2008. The examiner found that there was no deformity, giving way, instability, pain, stiffness, or weakness, but that the Veteran did have locking episodes 1-3 times per month. He also noted no episodes of subluxation, that there were no flare-ups of joint disease, and that while there was swelling, the Veteran’s gait was normal. The Veteran also exhibited full range of active and passive motion, there was no additional loss of motion on repetitive use testing, and there was no ankylosis. Private treatment records from August 2010 demonstrate that the Veteran had mild right knee effusion at that time, a 2+ Lachman with soft end point, medial joint line tenderness, and full active range of motion. The Veteran was afforded another VA examination in December 2015. The examiner noted that the Veteran had ACL (anterior cruciate ligament) tear surgery in 1993, DJD, knee instability, and arthritis. He noted that MRIs in 2005, 2007, and 2010 showed an abnormal, missing ACL. While the examiner noted that the Veteran had a meniscus condition, he stated that there were no current symptoms. The Veteran reported flare ups 3-4 times per week for up to one hour. Range of motion testing revealed that the Veteran had flexion from 0 to 105 degrees and extension from 105 to 0 degrees. Pain was noted to cause functional loss on examination, but there was no evidence of pain on weightbearing. Repetitive use testing revealed no additional functional or range of motion loss, and the examiner opined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time. Regarding flareups, the examiner found that the examination was not being conducted during a flareup, and he was unable to state without resorting to mere speculation whether pain, weakness, fatigability, or incoordination limited functional ability with flareups. There was no ankylosis, history of recurrent subluxation, lateral instability, or joint effusion. The examiner did note joint instability, however, both anteriorly and posteriorly. The Veteran was afforded another VA examination in June 2016. Range of motion testing revealed flexion from 0 to 135 degrees and extension from 135 to 0 degrees. The examiner found that range of motion did not contribute to functional loss, and there was no evidence of pain on weightbearing. The Veteran was unable to perform repetitive use testing with either knee, and the examiner noted he was unable to state without resorting to mere speculation whether repeated use over time or flareups would cause additional functional loss. There was no atrophy or ankylosis, no recurrent subluxation, lateral instability, or joint effusion, and joint stability testing was negative for both knees. The examiner also noted that the Veteran had a meniscus condition with frequent episodes of pain in both knees. The Veteran was afforded another VA examination in July 2017. The examiner noted diagnoses of right knee instability and DJD, and found the Veteran’s active and passive range of motion to be normal. Repetitive use testing revealed no additional loss of range of motion. The examiner also stated that he was unable to state without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly contributed to functional loss with repeated use over time or with flareups. Once again, there was no atrophy, ankylosis, recurrent subluxation, lateral instability, or joint effusion, but there was anterior and posterior instability. The examiner noted that the Veteran had a meniscus condition, but that he did not have any current symptoms. The Veteran was afforded his most recent VA examination in April 2019. The examiner noted diagnoses of right knee anterior cruciate ligament tear, posterior cruciate ligament tear, instability, and degenerative arthritis. Range of motion testing revealed flexion from 0 to 110 degrees and extension from 110 to 0 degrees. Repetitive use testing did not reveal additional range of motion loss of either knee, and the examiner opined that he was unable to state without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited function loss with repeated use over time or with flare ups. He stated that after examination, listening to the Veteran’s complete history and his current subjective complaints, combined with review of the available records, he had “NO basis to offer more additional losses of function or motion when it [came] to REPETITIVE USE or during FLAREUPS.” (Emphases in original.) There was no atrophy, ankylosis, recurrent subluxation, lateral instability, or effusion, but anterior joint instability was noted. The examiner also noted that the Veteran had a meniscus condition and underwent repair in 1993, but that he had no current symptoms. Based on a review of the evidence, the Board finds that the Veteran is not entitled to increased ratings for DJD of the right knee based on limitation of motion. Simply put, the Veteran’s flexion has exceeded 45 degrees throughout the appeal period; extension has been full to 0 degrees throughout; and there is no evidence that pain on repeated use or during flareups causes functional loss that would warrant a higher rating. Nor is the Veteran entitled to a 20 percent disability rating under DC 5003, as X-ray evidence of service-connected arthritis in two or more major joints of either leg, with incapacitating exacerbations, has not been demonstrated. Indeed, the only joint for which the Veteran is currently service connected is the right knee. The Board also finds that the Veteran is not entitled to higher ratings for right knee instability. The evidence prior to August 10, 2010 does not indicate that his instability was greater than slight. While VA examinations in December 2015, July 2017, and April 2019 all demonstrate instability, the June 2016 VA examination expressly notes that there was no instability, and none of the evidence indicates that the instability is severe, rather than moderate. The Board finds, further, that a separate rating is not warranted for dislocation or removal of the semilunar cartilage under DCs 5258 and 5259, respectively. Although the January 2008 VA examination noted locking episodes, and the June 2016 VA examination noted frequent episodes of pain due to a meniscus condition, the December 2015, July 2017, and April 2019 VA examinations noted no current symptoms related to the Veteran’s meniscus condition. While there was effusion on examination in January 2008 and August 2010, VA examinations in December 2015, June 2016, July 2017, and April 2019 noted no effusion. Based on the evidence, the Board finds that a separate compensable rating under DC 5258 is not warranted in the absence of coinciding and conjunctive symptoms of both frequent episodes of locking and pain, as well as effusion into the joint. 38 C.F.R. § 4.71a; see also Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (stating that the inclusion of the conjunctive word “and” clearly indicates that all listed criteria must be demonstrated, or it would render the wording meaningless). Diagnostic Codes 5256, 5262, and 5263 provide ratings for ankylosis, impairment of tibia and fibula, and genu recurvatum, respectively. The medical evidence shows that such impairments are absent, and the Veteran does not contend otherwise. See January 2008, December 2015, June 2016, July 2017, and April 2019 VA examinations. Therefore, a higher rating is not available under those DCs. The Board finds that the rating criteria contemplate the Veteran’s service-connected right knee disabilities. His right knee disabilities are manifested by painful motion and instability. These manifestations are specifically contemplated by the applicable rating criteria. 38 C.F.R. § 4.71a. Furthermore, to the extent that the Veteran’s activities are limited because of such symptoms, such limitations are contemplated by the current ratings for DJD and instability. In reaching these conclusions, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the assignment of higher ratings, that doctrine is not applicable. 38 U.S.C. § 5107(b). The appeal of these issues is denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. This issue was previously before the Board in July 2018, when it was remanded for the issuance of a statement of the case (SOC). In August 2018, the RO issued an SOC. The Veteran filed a VA Form 9 in September 2018, and the case was returned to the Board. Although the Board sincerely regrets the additional delay, another remand is necessary to afford the Veteran an adequate examination. The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, that was incurred in or caused by service. Specifically, in a June 2017 document, he described two stressors that he contends led to the development of PTSD. The first involved a volcano eruption while serving in the Philippines and his subsequent witnessing of people being killed in its aftermath; the second involved witnessing the deaths of civilians and injuries to fellow service members while deployed to Kuwait and Iraq. The Board notes that a March 2015 VA treatment record indicates that the Veteran has been diagnosed with PTSD, anxiety, generalized anxiety, and dysthymia. A May 2019 VA record indicates he has been diagnosed with PTSD and depressive disorder. The Veteran was afforded a VA examination in connection with his claim in July 2016. The examiner found that the Veteran did not have a diagnosis of PTSD because his condition did not meet the criteria, that he had a diagnosis of alcohol use disorder, and that he did not have any other mental health diagnoses. He found that the Veteran’s two reported PTSD stressors met criterion A, and that the stressors were adequate to support a diagnosis of PTSD. He did not provide a response as to whether the stressors met the other criteria for a diagnosis of PTSD. The examiner reasoned that while the Veteran was exposed to trauma that would be sufficient for a diagnosis of PTSD, he denied most PTSD symptoms, and stated that it was clear that the Veteran’s ongoing major difficulty was alcohol dependence. He noted that at the Veteran’s current level of consumption it would be impossible to make another diagnosis without a period of at least 30 to 60 days of sobriety. He stated that even so, it would be less likely than not that the Veteran was suffering from PTSD, but that he may be suffering an ongoing anxiety disorder or depressive disorder which “may or may not” be related to military service. The Board finds the July 2016 examination inadequate. First, the examiner’s finding that the Veteran does not have any mental health diagnoses other than alcohol use disorder is inconsistent with VA treatment records indicating that he has diagnoses of PTSD, anxiety disorder, and depressive disorder. Second, he failed to respond to whether the Veteran’s symptoms met the other criteria for a diagnosis for PTSD, even where he found that the Veteran’s reported stressors were adequate to support a diagnosis of PTSD. Finally, his opinion that the Veteran may be suffering from a mental disorder which “may or may not” be related to service is equivocal. Under the circumstances, a new examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). This matter is REMANDED for the following action: 1. Take action to ensure that all relevant records of the Veteran’s VA treatment are associated with the record, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA mental disorders examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, the examiner should indicate whether the Veteran meets the DSM-5 diagnostic criteria for PTSD. If it is the examiner’s opinion that the diagnostic criteria for PTSD have been met, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the diagnosis is related to a verified stressor. If psychiatric disorders other than PTSD, such as anxiety or depression, are diagnosed, the examiner should provide an opinion, with respect to each such disorder, as to whether it is at least as likely as not that the disorder had its onset in, or is otherwise attributable to, service. In so doing, the examiner should consider the March 2015 and May 2019 VA treatment records indicating that the Veteran has diagnoses of PTSD, anxiety, and depressive disorder, as well as any other relevant VA treatment records that set out a psychiatric diagnosis. He should also consider and address the Veteran’s stressors as reported in his June 2017 document. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a   supplemental statement of the case. Allow an appropriate period of time for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.