Citation Nr: 21001729 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 18-21 084 DATE: January 11, 2021 ORDER Entitlement to service connection for depressive disorder, is granted. Entitlement to service connection for a left hand condition is denied. Entitlement to a rating in excess of 10 percent for chronic patellar subluxation by description, status post arthroscopic debridement is denied. REMANDED Entitlement to service connection for a heart condition is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the evidence is in equipoise as to whether his current psychiatric disorder is related to service. 2. The preponderance of the evidence is against finding that the Veteran’s current left hand disability was incurred in or caused by service. 3. Throughout the period on appeal the Veteran’s chronic patellar subluxation by description, status post arthroscopic debridement has been manifested by, at worst, slight recurrent subluxation, and without evidence of arthritis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left hand condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to a rating in excess of 10 percent for chronic patellar subluxation by description, status post arthroscopic debridement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case was last before the Board in June 2019 and has returned to the Board for further appellate review. The Board notes that in a March 2020 rating decision, the RO awarded a separate 10 percent rating for the Veteran’s chronic patellar subluxation by description, status post arthroscopic debridement based on painful motion, effective January 16, 2020. The Veteran has not appealed the evaluation or effective date assigned in that decision. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Where a veteran served continuously for 90 days or more during active service and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for an acquired psychiatric disorder Upon review of the evidence of record, and after resolving all doubt in favor of the Veteran, the Board finds that the Veteran currently suffers from an acquired psychiatric disorder that is related to service. A March 2016 VA treatment record reveals that the Veteran was diagnosed with major depressive disorder and noted as having depressed mood and affect. Subsequent VA treatment records also document the Veteran’s diagnosis of major depressive disorder. In May 2019, the Veteran submitted a Disability Benefits Questionnaire and opinion from Dr. K.B, a licensed psychologist, which reflects a diagnosis of persistent depressive disorder. The psychologist noted symptoms such as depressed mood, chronic sleep impairment, disturbances of motivation and mood, and neglect of personal appearance and hygiene. After a review of the claims file and interview of the Veteran, the psychologist opined that the Veteran’s symptoms more likely than not began during military service and have continued since. Furthermore, she opined that the Veteran’s service-connected medical conditions have contributed to the development and continuation of his depressive symptoms. The Board notes that the Veteran underwent a VA examination in January 2020, at which time the examiner indicated that the Veteran had a diagnosis of histrionic personality disorder. However, in the May 2019 opinion from Dr. K.B., she noted that the Veteran’s developmental history is not consistent with a personality disorder diagnosis and such a diagnosis has not been given since discharge. As such, the Board finds the opinion of Dr. K.B. and the Veteran’s VA treatment records more probative in diagnosing depression. Upon review of the evidence of record, and after resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s currently diagnosed depressive disorder is related to service. Accordingly, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a left hand condition The Board notes the Veteran’s representative has provided no argument concerning this claim in the April 2020 appellate brief. Upon review of the record, the Board finds that the preponderance of evidence is against a finding that the Veteran’s current left hand condition was incurred in or caused by service. Service treatment records reveal that the Veteran sought treatment after he injured his left middle finger while bowling in October 1972. Subsequent service treatment records are absent complaints of or treatment for issues related to the left hand. Moreover, in his report of medical history at separation, the Veteran did not report any issues regarding his left hand. Post-service treatment records reveal the Veteran sought treatment in April 2004 for an injury to his left ring finger after falling from a porch and using his left hand to break his fall. The Veteran underwent a VA examination in January 2020, during which the Veteran reported that his left ring finger has a decreased range of motion and has been locking up, which causes it to ache. The examiner indicated the Veteran had diagnoses of ankylosis of the 3rd and 4th fingers of the left hand and carpal tunnel syndrome. The examiner opined that the Veteran’s current left hand disability was less likely than not incurred in or caused by service. In support of this opinion, the examiner explained that the condition of left hand during service was acute only, and there is no evidence of chronicity. The examiner indicated that the injury to the Veteran in service was to the middle finger and VA treatment records show the fracture of the 4th finger occurred in 2004 after a fall. Furthermore, the Veteran’s carpal tunnel diagnosis did not occur in service nor is a result of the Veteran’s service. Although the Veteran believes that his current left hand disability is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the diagnosis and etiology of hand disabilities are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the onset and etiology of his current hand disability is not competent medical evidence. In sum, the preponderance of the evidence is against the claim, and service connection for a left hand condition is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning ratings in excess of those already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. 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). 3. Entitlement to a rating in excess of 10 percent for chronic patellar subluxation by description, status post arthroscopic debridement (hereinafter “right knee subluxation”) The Board notes the Veteran’s representative has provided no argument concerning this claim in the April 2020 appellate brief. Service connection was originally granted for the Veteran’s right knee subluxation in a January 1985 rating decision which assigned a noncompensable rating. Thereafter, a May 2002 rating decision increased the disability rating for the Veteran’s service-connected right knee disability to 10 percent, effective November 15, 2001. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran initiated the present claim for an increased rating in in October 2015, and the March 2016 rating decision that is the subject of this appeal continued the 10 percent disability rating. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Upon review of the record, the Board finds that the preponderance of the evidence is against ratings in excess of 10 percent for the Veteran’s service-connected right knee disability at any time during the period on appeal. The Veteran underwent VA examinations in March 2016 and January 2020. At worst, range of motion testing revealed right knee flexion to 125 degrees; and right knee extension to 0 degrees. During the March 2016 examination he reported daily constant moderate to severe right knee pain. He reported knee pain with prolonged walking, stairs, kneeling or changes in weather. He also reported intermittent knee cramping and stiffness. No subluxation was found and stability testing was normal. Moreover, joint stability testing performed during the January 2020 VA examination revealed the Veteran has a history of slight recurrent subluxation. Both examiners noted that arthritis was not shown on x-ray. A review of the Veteran’s VA treatment records does not show symptomatology more severe than that noted during the VA examinations. The Board has reviewed and considered the Veteran’s assertions in support of his claim, including his reports of increased knee pain, trouble kneeling, and intermittent sharp pain that travels to the hip. However, the objective medical evidence is of greater probative value as to the Veteran’s level of impairment than his assertions. As noted above, the Veteran is currently in receipt of a separate rating for limited motion from January 16, 2020. However, the VA examiners indicated the Veteran does not have arthritis in his knee, and at no time has his motion been limited to a compensable degree under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 or 5261. In this regard, he has full extension and flexion has not been limited to 45 degrees. Thus, a higher rating based on limitation of motion prior to the effective date of the separate rating is not warranted. In sum, the preponderance of the evidence is against a rating in excess of 10 percent for the service-connected right knee subluxation disability at any time during the period on appeal. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning ratings in excess of those already assigned, the doctrine is not for application. See Gilbert, 1 Vet. App. at 53.   REASONS FOR REMAND 1. Entitlement to service connection for a heart condition is remanded. While further delay is regrettable, the Board finds that additional development is needed prior to adjudicating the issues on appeal. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement service connection for a heart condition. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to the Veteran’s service connection claim for a heart condition, the Veteran underwent a VA examination in January 2020, during which the examiner opined that the Veteran’s condition was less likely than not incurred in or caused by service. The examiner explained that the condition did not exist in service or during the presumptive period. In providing her opinion, the examiner did not address the Veteran’s service treatments records showing the Veteran’s complaints of chest pain. Additionally, the Veteran now asserts that his heart condition is secondary to his psychiatric disability. In an April 2019 private opinion submitted by the Veteran, Dr. M.B. opined that the Veteran’s depression aided in the development and permanently aggravates his heart condition. However, it is unclear the extent to which the aggravation prong played in the physician’s positive opinion regarding causation. Moreover, the Board finds the physician being unable to speculate regarding the impact of the Veteran’s numerous other risk factors for heart disease yet being able to somehow conclude that depression was a causative factor to be problematic. In addition, the VA examiner noted the Veteran suffered from hypertension, which is also linked to his heart condition. Thus, the Board finds an additional opinion is needed. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his heart disability. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain an addendum opinion on the claim for service connection for a heart condition. If a new examination is deemed necessary, one should be scheduled. After review of the claims file, the examiner should respond to the following: (a.) For each diagnosed heart disorder, indicate whether it is at least as likely as not (50 percent probability or greater) that such disorder had its onset during or is otherwise related to his service. In rendering the opinion, the examiner should address the in-service complaint of chest pain. (b.) If not related to service, is it at least as likely as not that the Veteran’s heart condition was caused by his service-connected depressive disorder? The examiner should explain why or why not, to include addressing the Veteran’s various risk factors. (c.) If not, is it at least as likely as not that the Veteran’s heart condition is worsened beyond natural progression (aggravated) by his service-connected depressive disorder? The examiner should explain why or why not. If the examiner finds that the Veteran’s heart condition was aggravated by his claimed psychiatric disability, the examiner should attempt to quantify the level of aggravation beyond the baseline level of the heart condition. 3. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, 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.