Citation Nr: 20046930 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 18-24 147 DATE: July 14, 2020 ORDER The Board’s January 14, 2020 decision is vacated. The claim for a rating higher than 10 percent for chondromalacia of the left patella with limitation of motion is denied. The claim for a separate 20 percent rating, but not higher, for chondromalacia of the left patella with a meniscal tear and joint effusion is granted. The claim to reopen service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED The claim for service connection for an acquired psychiatric disorder other than PTSD, to include as secondary to service-connected disabilities is remanded. The claim for a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Board’s failure to address a claim for entitlement to TDIU in the January 14, 2020 decision was clear and unmistakable error. 2. The Veteran’s chondromalacia of the left patella manifests painful restricted motion with flexion limited at most to 100 degrees and extension limited at most to -8 degrees; there is no recurrent subluxation or lateral instability, ankylosis, or impairment of the tibia or fibula. 3. The Veteran’s left knee disability manifests a meniscus tear with frequent episodes of effusion and joint pain. 4. The claim for entitlement to service connection for PTSD was initially denied in a November 2008 rating decision. The Veteran attempted to reopen her claim and was most recently denied in a March 2014 rating decision. 5. The evidence received since the March 2014 rating decision is cumulative and redundant of other evidence of record and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for vacating the Board’s January 14, 2020 decision are met. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 20.904, 20.1400. 2. The criteria for a rating higher than 10 percent for chondromalacia of the left patella with limitation of motion are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5260-5262. 3. The criteria for a separate 20 percent, but not higher, for chondromalacia of the left patella with a meniscal tear and joint effusion are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5258. 4. New and material evidence has not been received to reopen service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to April 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office. Vacatur 1. Whether the Board’s January 14, 2020 decision should be vacated. In January 2020 the Board issued a decision addressing claims for increased ratings for a left knee disability, a claim to reopen service connection for PTSD, and a claim for service connection for an acquired psychiatric disorder. After the issuance of the decision, the Veteran’s representative filed a motion for reconsideration in February 2020 contending that the Board erred in the January 2020 decision by not addressing an inferred claim for entitlement to TDIU. A Board decision may be vacated at any time upon the Board’s own motion. 38 C.F.R. § 20.904. Additionally, final Board decisions are subject to revision based on a clear and unmistakable error (CUE). 38 C.F.R. §§ 20.1400, 20.1403. The Board finds that the failure to address the inferred claim for TDIU in the January 2020 decision was CUE. In light of the above, the Board’s January 14, 2020 decision is vacated. 2. Entitlement to a rating higher than 10 percent for chondromalacia of the left patella. Service connection for chondromalacia of the left patella was awarded in a January 1991 rating decision with an initial noncompensable (0 percent) rating assigned effective April 25, 1991. An increased 10 percent evaluation was assigned in January 1993 effective from the original date of service connection—April 25, 1991. In February 2014, the agency of original jurisdiction (AOJ) changed the diagnostic code used to rate the left knee disability. Previously, the Veteran’s left knee was assigned a 10 percent rating under Diagnostic Code 5257, pertaining to instability. The AOJ changed the diagnostic code to 5260, pertaining to limitation of motion, and assigned a 10 percent rating under 38 C.F.R. § 4.59 which provides for a “minimum compensable rating” for painful joints. The change in diagnostic code did not affect the Veteran’s 10 percent evaluation or total compensation and was essentially an administrative recharacterization of the Veteran’s condition. The Veteran contends that a higher rating is warranted based on left knee pain and loss of function. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. See also DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Board finds that a higher rating is not warranted for the Veteran’s left knee disability based on limitation of motion under 38 C.F.R. § 4.59 and Diagnostic Code 5260; however, a separate 20 percent rating for impairment of the semilunar cartilage with a meniscal tear and effusion into the joint is appropriate under Diagnostic Code 5258. The 10 percent rating currently assigned the service-connected left knee disability is based on painful motion resulting in functional loss. As discussed below, the Veteran’s left knee is productive of noncompensable limited motion and a 10 percent rating is assigned in accordance with 38 C.F.R. § 4.59 which provides for a maximum 10 percent evaluation (“minimum compensable rating”). The Board finds that an increased rating is not warranted for the left knee based on limitation of motion. Throughout the appeal period, the Veteran’s left knee has manifested noncompensable limitation of motion that most nearly approximates flexion limited to 100 degrees or better and extension limited to -8 degrees or better. Flexion of the left knee was most limited at the March 2018 VA examination when it was measured to 100 degrees. Extension of the left knee was consistently full to 0 degrees, except at a February 2017 VA Medical Center (VAMC) physical therapy consultation when it was limited to -8 degrees. Range of motion with flexion to 100 degrees or better with extension to -8 degrees or better is noncompensable under Diagnostic Codes 5260 and 5261. An increased rating under these codes is therefore not possible. The Veteran is currently in receipt of a 10 percent evaluation for the left knee under 38 C.F.R. § 4.59 which provides for a minimum compensable rating, i.e. a 10 percent rating, under Diagnostic Code 5260 based on limitation of flexion. The regulation does not provide any mechanism for a rating higher than 10 percent. Therefore, an increased rating is not warranted based on the diagnostic codes pertaining to range of motion of the knee or under the provisions of 38 C.F.R. § 4.59. The Board has also considered whether a higher rating is warranted based on various functional factors. However, even with consideration of such factors, the Veteran’s left knee disability does not manifest limitation of motion that most nearly approximates a higher rating. The range of motion results reported by July 2015 and March 2018 VA examiners reflect the point at which the Veteran began to experience pain during testing. The Veteran also had no additional loss of motion in the left knee following repetitive testing and repetitive movement of the knee. VA treatment records document general complaints of chronic knee pain and the Veteran has described her functional limitations to VA examiners and her healthcare providers. In August 2014, she stated that her knee pain limited her ability to walk and the 2015 and 2018 VA examiners found that she was limited in her ability to perform work that required her to stand on her feet. The Board has considered the Veteran’s statements and concludes that the functional limitations described by the Veteran are contemplated by the current 10 percent rating assigned under 38 C.F.R. § 4.59 which specifically account for her reports of pain in the joint and limited motion. Even with consideration of all relevant functional factors, based on the objective medical evidence of record, the Board finds that the Veteran’s knee manifestations do not most nearly approximate limitation of motion that is contemplated by any increased ratings. The Board has also considered whether separate or higher ratings for instability or subluxation of the knee may be appropriate. Diagnostic Code 5257, pertaining to recurrent subluxation or lateral instability, provides for a 10 percent rating for slight lateral instability or recurrent subluxation, a 20 percent rating for moderate lateral instability or recurrent subluxation, and a maximum 30 percent rating for severe lateral instability or recurrent subluxation. 38 C.F.R. § 4.71a. The Board finds that the Veteran’s left knee disability has not approximated slight subluxation or instability at any time during the appeal period. The service-connected knee was stable on testing at the VA examinations in July 2015 and March 2018. The left knee has also been consistently stable during evaluations at the VAMC dated throughout the claims period. The Veteran has not reported experiencing actual instability or subluxation of the knee and a separate or higher rating for instability or subluxation is not warranted at any time during the appeal period. Although the evidence does not establish an increased rating is warranted for the Veteran’s left knee based on limitation of motion or instability, the Board finds that a separate rating is appropriate for a tear of the left meniscus and frequent joint effusion under Diagnostic Code 5258. Under this diagnostic code, a maximum 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Although there are no findings of dislocated cartilage or locking, a May 2015 MRI of the left knee established the presence of a large joint effusion and meniscal tear. The July 2015 and March 2018 VA examiners both identified the presence of frequent joint effusion and the Veteran is service-connected for chondromalacia patella, indicating impairment of the knee cartilage. The Board therefore finds that a separate 20 percent rating is warranted under Diagnostic Code 5258 for the left knee throughout the claims period. The Board has considered whether the assignment of separate a 20 percent rating under Diagnostic Code 5258 violates the rule against pyramiding as the Veteran is also in receipt of a 10 percent rating under Diagnostic Code 5260. In Lyles v. Shulkin, 29 Vet. App. 107 (Nov. 29, 2017), the Court of Appeals for Veterans Claims (Court) specifically held that the evaluation of a knee disability under Diagnostic Code 5257, 5260, or 5261 does not preclude a separate rating of the same knee under Diagnostic Code 5258. Therefore, the assignment of ratings under Diagnostic Codes 5260 and 5258 is not generally precluded as a matter of law. The Board also finds that the symptomatology contemplated by both diagnostic codes is separate and distinct in this case. Diagnostic Code 5258 contemplates impairment of the cartilage of the knee which can lead to dislocation, locking, or joint effusion (i.e. swelling). In contrast, Diagnostic Code 5260 and 38 C.F.R. § 4.59 pertain to painful limited motion of the knee. The Board finds that the symptomatology contemplated by both diagnostic codes is separate and distinct and separate ratings do not violate VA’s rule against pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Finally, the Board finds that there is no other schedular basis for granting a higher or other separate rating. Diagnostic Codes 5256 and 5262 provide for ratings higher than 10 percent with a showing of ankylosis and impairment of tibia or fibula. The medical and lay evidence does not establish any pathology associated with these knee conditions. The Board therefore finds that additional separate or higher ratings are not warranted and the claim for an increased evaluation is granted to the extent discussed above. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for PTSD. The Veteran first filed a claim for entitlement to service connection for PTSD in July 2008. The claim was denied in a November 2008 rating decision as the record did not establish a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a). Notice of the rating decision was provided in December 2008 and the Veteran did not appeal the denial of her claim. The November 2008 rating decision is therefore final. 38 U.S.C. §§ 5108, 7103; 38 C.F.R. § 3.156. A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court indicated that new and material evidence raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it at least triggers the duty to assist by providing a medical opinion. The Court further held that 38 C.F.R. § 3.156 (a) “must be read as creating a low threshold,” and that “the phrase ‘raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening.” Shade at 117. The Court further noted that “[t]he Board’s analysis of the issue of reopening must first be confined to the subject of the existence of new and material evidence alone and must not be an outcome-based decision.” Id. at 121. The Veteran attempted to reopen her claim for service connection for PTSD and was denied in a March 2014 rating decision. Again, the claim was denied as the evidence did not establish a diagnosis of PTSD. The evidence received since the March 2014 rating decision includes medical records from the VAMC and the report of a July 2015 VA examination. This evidence is new as it was not of record at the time of March 2014 rating decision, but it is not material as it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of establishing the claim. The new medical records document the Veteran’s treatment for depressive and anxiety disorders. The Veteran has continued to receive intermittent therapy and has discontinued use of mental health medications. Her VAMC records document diagnoses of major depressive disorder and a nonspecified anxiety disorder. VA health care providers often characterize the Veteran’s anxiety disorder as “subclinical PTSD,” indicating that the condition does not meet the criteria for a diagnosis of PTSD. Similarly, in July 2014, the Veteran’s VA psychologist specifically informed the Veteran that she did not develop “full blown PTSD” as a result of her reported traumas. A July 2015 VA examiner also found that the Veteran did not meet the criteria for a diagnosis of PTSD; instead, the examiner diagnosed major depression, borderline personality disorder, and an anxiety disorder. Finally, the Board notes that the Veteran submitted a Mental Disorders Disability Benefits Questionnaire (DBQ) in November 2018 in support of her claim, but the private examiner who completed the questionnaire did not identify the presence of PTSD. Instead, the private examiner diagnosed the Veteran with major depression and borderline personality disorder. Thus, none of the medical evidence added to the record since the March 2014 rating decision establishes a diagnosis of PTSD or even suggests that such a diagnosis may be present in this case. The Board has carefully and specifically considered the Court’s decision in Shade, but none of the evidence added to the record raises a reasonable possibility of substantiating the claim or would at least trigger the VA’s duty to assist by obtaining an additional medical opinion. The Board has considered the Veteran’s lay statements, but finds that they are cumulative and redundant of evidence of record prior to March 2014. The competent evidence does not indicate that the Veteran has met the criteria for a diagnosis of PTSD at any time during the claims period. Therefore, the Board finds that new and material evidence has not been submitted to allow for reopening of the claim. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include as secondary to service-connected disabilities. The Board finds that a remand is necessary to obtain a VA medical opinion addressing various theories of entitlement in this case. The Veteran contends that service connection is warranted for an acquired psychiatric disorder other than PTSD, to include major depressive disorder and an anxiety disorder, as they were incurred due to a sexual assault during service. Alternatively, the Veteran now contends that service connection is warranted for an acquired psychiatric disorder as secondary to her service-connected disabilities. In November 2018, the Veteran submitted the report of a July 2018 private psychiatric evaluation in support of her claim. The private examiner concluded that the Veteran’s claimed depressive disorder began in service and is aggravated by her service-connected disabilities. The Veteran has therefore raised the issue of whether service-connection is warranted for an acquired psychiatric disorder on a secondary basis. A VA opinion is also necessary to address the question of whether the Veteran’s acquired psychiatric disorder clearly and unmistakably existed prior to service and was not aggravated therein. The Veteran has reported a history of sexual assault and self-harm prior to enlistment, and February 2014 and July 2015 VA examinations indicate that the Veteran’s mental health problems began before active military service. The November 1986 enlistment examination is negative for any psychiatric abnormalities and the presumption of soundness applies in this case. A medical opinion is therefore necessary to address whether the presumption is rebutted. 2. Entitlement to a TDIU. A claim for TDIU was raised by the Veteran’s representative in a November 2018 written brief as part of the current claims before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (When evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability.). In September 2018, a private physician provided a medical opinion in support of the claim for TDIU, concluding that the Veteran was unemployable due to service-connected migraine headaches, and left and right knee disabilities. However, the Board notes that the Veteran does not currently meet the schedular criteria for an award of TDIU under 38 C.F.R. § 4.16(a). Additionally, in September 2018, another private health care provider opined that the Veteran’s major depressive disorder and borderline personality disorder rendered her unable to function in a competitive work environment. The Board therefore finds that the claim for entitlement to a TDIU is inextricably intertwined with the claim for service connection for an acquired psychiatric disorder and must also be remanded. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s diagnosed major depressive disorder and anxiety disorder. The examiner must determine: (a) Whether it is at least as likely as not that the diagnosed major depressive disorder and/or anxiety disorder are (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. The examiner must address the aggravation prong of the secondary service connection claim. (b) Whether the Veteran’s major depressive disorder and/or anxiety disorder clearly and unmistakably (undebatably) preexisted the Veteran’s service. If so, whether the disorders were clearly and unmistakably not aggravated by service. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Riley, 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.