Citation Nr: 20049901 Decision Date: 07/27/20 Archive Date: 07/27/20 DOCKET NO. 15-09 890 DATE: July 27, 2020 ORDER The application to reopen the claim for service connection for a psychiatric disorder is granted. Service connection for an acquired psychiatric disorder is granted. A 20 percent rating based on instability of the left knee is granted. A 10 percent rating based on painful motion of the left knee is granted. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for inguinal hernia is remanded. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability is remanded. FINDINGS OF FACT 1. A May 2010 rating decision denied claims for service connection for acquired psychiatric disorders. The evidence received subsequent to the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim. 2. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303, 3.304. 3. The left knee disability is at worst manifested by painful motion; the left knee does not have motion limited to fewer than full extension or 100 degrees of flexion or worse than moderate instability or recurrent subluxation. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim of entitlement to service connection for an acquired psychiatric disorder has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for a 20 percent rating based on recurrent subluxation or lateral instability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for a 10 percent rating based on limitation of motion for the left knee disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1999 to May 2004. Application to Reopen The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). Claims of service connection for posttraumatic stress disorder and acquired psychiatric disorder were previously denied, most recently in a May 2010 rating decision. The claims were denied, in part, because there was no probative diagnosis of posttraumatic stress disorder and no nexus between a different acquired psychiatric disorder and service. The Veteran was notified of the decision and did not appeal within the appeal period or submit pertinent evidence within the appeal period. In August 2012, the Veteran filed an application to reopen the claim for service connection for posttraumatic stress disorder. In connection with the Veteran’s claim to reopen, evidence has been added to the record, which includes diagnoses of posttraumatic stress disorder due to service. The Board finds that new and material evidence has been received sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that the record also includes new and material evidence linking currently diagnosed psychiatric disorders other than posttraumatic stress disorder to service. Based on this new and material evidence and after consideration of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board will adjudicate service connection for an acquired psychiatric disorder including but not limited to posttraumatic stress disorder. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The service treatment records reveal histories of psychiatric symptoms including mild depression and assessments of adjustment and anxiety disorder, an August 2004 VA examination record reveals diagnosis of depression, and subsequent medical records, including an August 2014 disability benefits questionnaire, reveal diagnoses including depressive disorder. The record also includes opinions linking the depressive disorder to service and to service-connected disabilities. The Board acknowledges that a July 2014 VA examination record only diagnoses unspecified anxiety disorder which the examiner determined was related to work stress and that a September 2016 VA medical opinion by a psychologist reveals the determination that the Veteran developed obsessive-compulsive personality traits during childhood which persisted and which could cause a range of psychological symptoms in adulthood and which were not aggravated by service. The psychologist added that it was not likely that the Veteran’s service permanently worsened an already existing condition. The September 2016 VA medical opinion does not address the evidence of depression during service and soon thereafter, however, or otherwise discuss the current findings of a depressive disorder. Resolving all doubt in favor of the Veteran, the Board finds service connection is warranted for an acquired psychiatric disorder diagnosed as depressive disorder. Increased Rating In a February 2005 rating decision, VA granted service connection for a left knee disability and assigned a noncompensable rating by analogy to Diagnostic Code 5257. In a May 2010 rating decision, VA granted service connection for left knee internal derangement and assigned a separate 10 percent rating based on limitation of motion. In August 2012, the Veteran filed a claim for increased rating. In a May 2013 rating decision, VA granted a 20 percent rating effective August 27, 2012. The codesheet accompanying the rating decision indicates that a 20 percent rating was assigned under Diagnostic Codes 5260-5257, and the rating decision narrative reports that the ratings for the left knee were combined into a single rating to “avoid pyramiding.” The narrative further states that a 20 percent rating was assigned based on moderate lateral instability and that a 10 percent rating was assigned for painful motion of the knee. VA regulations do not preclude separate ratings for limitation of motion and instability. Based on the May 2013 rating decision narrative, the Board finds the Veteran is entitled to a 20 percent rating under Diagnostic Code 5257 and a 10 percent rating under Diagnostic Code 5003 based on limitation of motion. The Board has considered whether a higher rating is warranted based on limitation of motion. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran’s ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Flexion of the leg 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, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. 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, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. After consideration of the record, the Board finds a higher rating is not warranted based on limitation of flexion and/or extension. The reported pain on motion is already contemplated in the rating assigned, and the record, which includes VA examinations dated in October 2012, August 2016, and August 2019 and VA and private treatment records reporting range of motion findings, consistently reveal motion from at least 0 to 100 degrees even with “throbbing pain.” Notably, the Veteran has not reported additional limitation of motion beyond that depicted during clinical examination or indicated that the examination reports are inadequate or inaccurate regarding his range of motion and functioning, and the Board finds the clinical findings while the Veteran was experiencing “throbbing” left knee pain is particularly probative as to functioning during a flare. The Board further finds a higher rating is not warranted based on instability or recurrent subluxation. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The record predominantly reveals findings of normal gait and joint stability, and the record is absent any findings or histories of severe instability or recurrent subluxation as required for a higher rating under Diagnostic Code 5257. The Board has considered whether a higher or separate rating is available but finds none is warranted. Thus, the Board finds a 20 percent rating based on instability and a 10 percent rating based on motion are warranted but higher rating is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder is remanded. 2. Entitlement to service connection for inguinal hernia is remanded. The Board finds an addendum opinion is needed from the doctor who provided the August 2019 opinion based on the evidence of historically altered gait. 3. Entitlement to an increased initial rating for a lumbar spine disability is remanded. Beginning in late 2019, the record reports radicular symptoms that are not documented in previous VA and private evaluations, and the record indicates that an electromyogram (EMG) was requested and radiculopathy was suspected. The Board finds a VA examination is needed to determine whether the lumbar spine disability is associated with neurologic deficit. The matters are REMANDED for the following action: 1. Undertake development to obtain updated private treatment records for the lumbar spine disability, including any EMG or nerve conduction studies. 2. Obtain addendum medical opinions from the August 2019 VA examiner as to whether there is a 50 percent or greater probability that the service connected left knee disability has aggravated the (a) right knee disorder or (b) inguinal hernia. The examiner must consider the historic evidence of antalgic gait due to the left knee disability. The rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided. If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified. 3. Afford the Veteran a VA examination to determine the current degree of severity of the service-connected lumbar spine disability. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Ensure that the examiner provides all information required for rating purposes, including ranges of active and passive motion and with and without weight-bearing. The examiner must describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.