Citation Nr: 21000800 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 13-34 266A DATE: January 6, 2021 ORDER A 20 percent rating for right knee disability based on frequent episodes of locking, pain, and effusion is granted. A 20 percent rating for status post right knee anterior cruciate ligament (ACL) repair prior to October 19, 2010, is granted. A rating in excess of 20 percent for status post right knee ACL repair is denied. A rating for right knee arthritis in excess of 10 percent from August 13, 2007; 100 percent from February 3, 2011; and 10 percent from June 1, 2011, is denied. A rating for left knee strain in excess of 10 percent is denied. Throughout the appeal, a 70 percent rating, but not higher, for adjustment disorder with depression, anxiety and panic attacks is granted. Throughout the appeal, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s right knee disability has been productive of panful flexion limited at most to 100 degrees; full extension; no more than moderate instability; and frequent episodes of locking, pain, and effusion. 2. Throughout the appeal period, the Veteran’s left knee disability has been productive of painful flexion limited at most to 100 degrees and full extension. 3. Throughout the appeal, the Veteran’s adjustment disorder with depression, anxiety and panic attacks was productive of occupational and social impairment with deficiencies in most areas. 4. Throughout the appeal, the Veteran’s service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a separate 20 percent rating for the right knee based on frequent episodes of locking, pain, and effusion have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5258. 2. The criteria for a 20 percent rating for status post right knee ACL repair prior to October 19, 2010, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. The criteria for a rating in excess of 20 percent for status post right knee ACL repair at any time during the appeal have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for a rating for right knee arthritis in excess of 10 percent from August 13, 2007; 100 percent from February 3, 2011; and 10 percent from June 1, 2011, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 5. The criteria for a rating in excess of 10 percent for left knee strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 6. The criteria for an initial 70 percent rating, but not higher, for the service-connected adjustment disorder with depression, anxiety, and panic attacks prior to prior to May 3, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. 7. The criteria for a TDIU throughout the appeal have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1992 to September 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in April 2016 and June 2018. The Board has recharacterized the issue of entitlement to an earlier effective date for the 100 percent rating for adjustment disorder as entitlement to a higher initial rating prior to May 3, 2017, to better reflect the Veteran’s contentions as addressed during the June 2018 hearing. Most recently, in October 2018, the Board remanded the issues on appeal, as well as entitlement to service connection for a low back disorder, for further development. In August 2020, the RO issued a rating decision granting service connection for thoracolumbar spine degenerative arthritis. As such, this issue is no longer before the Board. 1. A 20 percent rating for right knee arthritis based on frequent episodes of locking, pain, and effusion is granted. The Board finds that a separate 20 percent rating is warranted under Diagnostic Code 5258 to account for the frequent locking, popping, pain, and swelling the Veteran experiences in his right knee. According to the rating schedule, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The evidence shows that the Veteran experiences frequent episodes of locking, swelling, and pain in the right knee. See Board hearing transcript (June 2018); VA examination (July 2009; January 2011; May 2017). Additionally, the Board notes that the Veteran has exhibited crepitus (including popping) in the right knee during the appeal period. Id. Thus, the Board finds that a separate 20 percent rating is warranted under Diagnostic Code 5258 to compensate him for these symptoms. See 38 C.F.R. § 4.20; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that the evaluation of a knee disability under Diagnostic Codes 5257 and 5260 or 5261 do not preclude, as a matter of law, a separate evaluation under Diagnostic Code 5258). 2. A 20 percent rating for status post right knee ACL repair prior to October 19, 2010, is granted. 3. A rating in excess of 20 percent for status post right knee ACL repair is denied. The Veteran seeks rating in excess of 10 percent for right knee instability from July 17, 2003, and 20 percent from October 19, 2010, for right knee instability. Instability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, which provides that slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms “mild,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. The evidence demonstrates that the Veteran’s right knee symptoms have been consistent with no more than “moderate” rather than “severe” recurrent subluxation or lateral instability periods under review. The Veteran has reported a longstanding history of giving way in his right knee, particularly with increased use. See Board hearing transcript (June 2018); VA examinations (July 2009, January 2011, May 2017, February 2020). Of the four VA knee examinations of record, only one, the January 2011 VA examiner, found objective evidence of moderate instability. The other three examiners found no objective evidence of instability or subluxation on physical examination and noted that stability tests were normal. In a May 2020 addendum opinion, the February 2020 VA examiner explains that spikes in pain (i.e., flare ups) may be causing a sensation of giving way, as opposed to instability or subluxation. The Board notes the Veteran is competent to report his symptoms and finds credible his observation of instability, particularly in light of the January 2011 VA examination report showing moderate ligament instability. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, in light of the January 2011 VA examination showing moderate instability and the Veteran’s consistent reports of giving way, the Board finds that the Veteran’s right knee disability has been productive of moderate instability, throughout the pendency of the appeal, to include the period from July 17, 2003, to October 18, 2010. However, for the purposes of determining the severity of the Veteran’s right knee instability, the Board finds that the VA examination reports showing no objective evidence of instability or subluxation and the February 2020 VA examiner’s explanation that the Veteran’s giving way is likely a result of pain as opposed to actual joint instability or subluxation, the objective evidence weighs predominately in favor of a rating of “moderate” rather than “severe” instability or subluxation. Furthermore, as there is no evidence of frequent episodes of giving way or falling as a result of right knee instability, the Board does not find that the Veteran’s disability picture has more nearly approximated “severe” recurrent subluxation or lateral instability at any point during the appeal period. Accordingly, a 30 percent rating for right knee instability is not warranted at any time during the pendency of the appeal. 4. A rating for right knee arthritis in excess of 10 percent from August 13, 2007; 100 percent from February 3, 2011; and 10 percent from June 1, 2011, is denied. 5. A rating for left knee strain in excess of 10 percent is denied. The Veteran seeks ratings in excess of 10 percent for left and right knee limitation of motion, which are rated under Diagnostic Code 5260. The Board finds that the Veteran is not entitled to ratings in excess of 10 percent for his left and right knee limitation of motion because he has not shown a compensable limitation of flexion or extension at any point during the appeal period, even when accounting for functional loss during flare ups or with repeated use over time. Under Diagnostic Code 5260, limitation of flexion of the leg is rated 0 percent when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of extension of the leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. In evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Here, the Veteran is not entitled to a rating in excess of 10 percent for limitation of motion in his left or right knees because even after accounting for his reported functional loss during flare ups, he did not exhibit any limitation of extension or a limitation of flexion to less than 70 degrees. During VA examinations in July 2009, January 2011, May 2017, and February 2020, the Veteran exhibited full extension and flexion limited from 140 to 100 degrees due to pain, which was recorded during the January 2011 VA examination. Based on the Veteran’s reported symptoms of functional impairment, to include swelling and pain, the February 2020 examiner estimated that the Veteran’s right knee range of motion is limited to 125 degrees during flare-ups. The Veteran’s VA examination reports consistently note weakness, stiffness, swelling, lack of endurance, and pain during flare-ups. During the June 2018 Board hearing, the Veteran asserted that prior examinations do not accurately reflect his ability to move his knees as examiners were “helping” him move through the range of motion. The Board acknowledges the Veteran’s report but finds that such does not invalidate prior recorded ranges of active motion. In this regard, the Veteran’s account of help though range of motion appears to refer to passive range of motion testing for pain, which is expressly documented in the May 2017 VA examination report. In sum, the Board finds that the Veteran is not entitled to ratings in excess of 10 percent for left or right knee limitation of motion at any point during the appeal period. In making this determination the Board has considered the Veteran’s reports of increased functional loss during flare-ups, and functional impairment in his ability to stand, walk, bend his knees and perform activities of daily living. Given that he has exhibited no limitation of extension in either knee and at best a noncompensable limitation of flexion to approximately 100 degrees in each knee (see VA examination, January 2011), the Board finds that his left and right knee symptoms have more nearly approximated the criteria for 10 percent ratings based on painful limitation of flexion throughout the appeal period. Indeed, as a compensable rating has been assigned based on flexion, the law precludes a second compensable rating based on painful extension limited to less than 5 degrees. The Veteran reports that during episodes of increased pain and swelling, he experiences difficulty with weightbearing activity. Although his function is impeded during flare ups, his periods of flare up resulting in functional loss are not so frequent or long in duration to warrant elevation of his 10 percent rating under Diagnostic Code 5260 to the next higher level. The overall disability picture of his knees does not more nearly approximate limitation of extension to 15 degrees or more or limitation of flexion to 30 degrees or less. Moreover, to the extent that the Veteran’s functional loss during periods of flare ups resulting in an inability to perform activities of daily living is related to right knee instability ot frequent episodes of locking, pain, and effusion, the Veteran is now being compensated for such effects under Diagnostic Codes 5257 and 5258. Thus, the Board finds that the criteria for a 20 percent rating for limitation of motion of the left or right knee have not been met, and that the functional loss described by the Veteran does not warrant elevation to a 20 percent rating under Diagnostic Code 5260 for either knee. Finally, the Board finds that the Veteran is not entitled to additional ratings under Diagnostic Codes 5256, 5259, 5262 or 5263. These diagnostic codes concern disabilities that involve ankylosis of the knee, symptomatic removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, and/or genu recurvatum. The evidence shows that he has not suffered injury at any point during the appeal period, nor is there any evidence that he has had surgical removal of his meniscus. Additionally, there is no objective evidence of ankylosis, a malunion or nonunion of the tibia or fibula, or genu recurvatum. Thus, he is not entitled to an additional rating under any of these diagnostic codes. 6. Prior to May 3, 2017, a 70 percent rating, but not higher, for adjustment disorder with depression, anxiety and panic attacks is granted. The Veteran seeks a rating in excess of 30 percent prior to May 3, 2017, for his service-connected psychiatric disorder. The Veteran’s psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9434. According to 38 C.F.R. § 4.126 (a), a mental disorder shall be rated “based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination.” 38 C.F.R. § 4.126 (a). For the reasons outlined below, the Board finds that a 70 percent rating is warranted prior to May 3, 2017. Under Diagnostic Code 9434, a 70 percent rating, is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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 work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted if evidence shows total occupational and social impairment, due to such symptoms 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; and memory loss for names of close relatives, own occupation, or own name. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). The Board finds that prior to May 3, 2017, the Veteran’s psychiatric symptoms, chiefly his suicidal ideation, are suggestive of occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Initially, the Board notes that the Veteran did not attend a VA psychiatric examination until May 2017. Nonetheless, during the June 2018 hearing, the Veteran testified that he has experienced suicidal ideation since 1998 and that he has been hospitalized several times due to his psychiatric symptoms. The Board finds the Veteran’s account credible as it is in step with medical records showing a longstanding history of serious psychiatric signs and symptoms such as suicidal ideation and depression and hospitalizations. See, e.g., VA treatment records (May 27, 2016; July 12, 2011); see Social Security Administration Determination (January 10, 2018) (citing numerous incidents of suicidal ideation). For these reasons, the Board finds that an initial 70 percent rating is warranted for the Veteran’s service-connected psychiatric disorder prior to May 3, 2017. It is undisputed that the Veteran’s psychiatric disorder results in serious occupational impairment; however, as a 100 percent rating for a psychiatric disorder requires both total occupational and social impairment, this case turns on the presence of total social impairment. Here, while the evidence shows that the Veteran’s psychiatric symptoms result in serious social impairment, it also shows that he has been able to maintain close relationships throughout the period on appeal. Specifically, treatment records show that friends took the Veteran to the hospital (VATR, August 17, 2011), that he has lived with friends (VATR, August 17, 2011), that he has had romantic relationships (VATR, February 25, 2012), and that he denied lack of close friends (VATR, June 20, 2016). In light of such relationships, the Board cannot find that he experienced total social impairment prior to May 3, 2017. Moreover, to reach a finding of total social impairment, the evidence would need to show that the Veteran did not have and close relationships, such as those described above. Therefore, because the evidence shows that the Veteran’s service-connected psychiatric disorder does not result in total social impairment, an initial 70 percent rating, but not higher, prior to May 3, 2017, is warranted. 7. Prior to May 3, 2017, a TDIU is granted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As a result of the above-discussed increased rating for his psychiatric disorder, prior to May 3, 2017, the Veteran’s service-connected disabilities satisfied the schedular criteria. See 38 C.F.R. § 4.16. Additionally, the Board finds that the Veteran’s service-connected psychiatric and musculoskeletal disabilities have been of sufficient severity to produce unemployability. In this regard, the Veteran has some college education in the field of teaching but no diploma (VA Form 8940, July 2008, August 2015) and was last employed as an electrician in 2005. See VA Form 8940 (July 2008). The evidence shows that since the Veteran was last employed, his psychiatric disorder has resulted in resulted in the following symptoms which significantly impair his ability to obtain and retain employment: suicidal ideation, anxiety, depression, panic attacks, and difficulty in establishing and maintaining effective work and social relationships. Additionally, the Veteran’s service-connected knee disabilities impaired his ability to engage in prolonged weightbearing, repetitive squatting, and kneeling, which would be required for employment consistent with his experience as a teacher and an electrician. After resolving any doubt in the Veteran’s favor, the Board finds prior to May 3, 2017, and throughout the appeal, the impact of the Veteran’s service-connected disabilities has rendered him incapable of obtaining or maintaining substantially gainful, even in light of his education and occupational history. See Geib, 733 F.3d 1350. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua R. Castillo, 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.