Citation Nr: 21001911 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-42 304 DATE: January 12, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected degenerative joint disease of the right knee (a right knee disability) is denied. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative joint disease of the left knee (a left knee disability) is denied. Entitlement to a disability rating in excess of 20 percent for service-connected degenerative joint disease of the left shoulder (a left shoulder disability) is denied. Entitlement to a disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a disability rating in excess of 10 percent prior to October 15, 2019, and in excess of 20 percent thereafter, for service-connected right tibialis anterior muscle damage (a right calf disability) is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s right knee disability has manifested with painful motion and, at worst, flexion limited to 100 degrees with normal extension. 2. For the entire period on appeal, the Veteran’s left knee disability has manifested with painful motion and, at worst, flexion limited to 100 degrees with normal extension. 3. For the entire period on appeal, the Veteran’s left shoulder disability has manifested with pain with limitation of motion to, at worst, flexion and abduction both limited to 170 degrees. 4. For the entire period on appeal, the Veteran’s PTSD has more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected right knee disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. 2. The criteria for an initial disability rating in excess of 10 percent for service-connected left knee disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. 3. The criteria for a disability rating in excess of 20 percent for service-connected left shoulder disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5201. 4. The criteria for a disability rating in excess of 30 percent for service-connected PTSD have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to September 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in August 2018 where they were remanded for additional development. They have since returned for further appellate review. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in May 2018. The Board notes that, during the hearing, the Veteran questioned the adequacy of May 2013 knee and PTSD examinations. Overall, the Board finds the examinations are adequate for determining the level of disability in this case as they include a review of the Veteran’s history (including his lay statements), diagnostic testing, and relevant examination findings. The Veteran was also afforded additional examinations in October 2019 pursuant to the Board’s previous remand, and the Veteran has not contended that these examinations were not adequate. The Board finds that the VA examinations of record are adequate for adjudication purposes. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 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 and, therefore, not be reflected on range-of-motion testing. 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Right and left knee disabilities. In the June 2013 rating decision on appeal, the Veteran was awarded service connection for left knee traumatic arthritis, and was assigned and initial disability rating of 10 percent. Additionally, his 10 percent rating for already-service-connected right knee degenerative joint disease was continued. The Veteran appealed, asserting that the severity of his bilateral knee disabilities warrants higher ratings. Based on the following, the Board concludes that the Veteran’s disability picture, to include his statements, does not more nearly approximate the degree required for a higher or separate rating. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege, that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. During the period on appeal, both of the Veteran’s knees are rated under Diagnostic Code 5010-5260. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 5010 pertains to arthritis, due to trauma, and is rated by analogy under Diagnostic Code 5260 for limitation of flexion. Range of motion testing was performed during VA examinations in May 2013 and, pursuant ot the Board’s last remand, October 2019, and was at worst 100 degrees of flexion with normal extension, bilaterally. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. Neither report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he has reduced motion in his knee, he has not described a range of motion less than that found on examination. In this regard, during the May 2013 examination the Veteran denied flare-ups; thus, consideration of range of motion during flare-ups is not necessary. There is no indication that ROM would be further reduced after repetitive use over time. While the Veteran did report flare-ups consisting of increased pain with activity at the more recent examination in October 2019, the examiner estimated that flexion and extension would not be further reduced during flare-up and after repetitive use over time. Treatment records do not show greater limitation of motion than the examination findings, nor do the Veteran’s statements. The Board acknowledges the Veteran’s reported use of an assistive device, which is not specifically noted in Diagnostic Codes 5260 and 5261. Here, the symptoms corrected/alleviated by using such have been addressed, and the Veteran’s medical treatment records and examinations describe the level of his disability when he is not using an appliance and those symptoms are contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Given the above, a higher rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. The Board notes that the Veteran is assigned a separate 20 percent rating for a healed left patella fracture under Diagnostic Code 5257, which contemplates recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. That rating is not on appeal to the Board. During the above examinations, right knee stability was evaluated and was normal. Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. No competent evidence shows instability or subluxation of the right knee. Likewise, no meniscal impairment is shown in either knee. As such, separate ratings are not warranted. Therefore, the Board concludes that the symptoms associated with the Veteran’s bilateral knee disabilities do not more nearly approximate the criteria for higher ratings at any point during the appeal and the claims must be denied. 38 C.F.R. §§ 4.3, 4.7. 2. Left shoulder disability. The Veteran was awarded service connection for his left shoulder disability in March 2007 and was assigned a 10 percent disability rating. While the rating decision on appeal continued the Veteran’s 10 percent rating, his rating was recently increased to 20 percent for the entire period on appeal in August 2020. He continues to assert that the severity of this disability warrants a higher rating. Based on the following, the Board concludes that the Veteran’s disability picture, to include his statements, does not more nearly approximate the degree required for a higher rating. The Veteran’s left shoulder disability is rated under Diagnostic Code 5010-5201. 38 C.F.R. § 4.71a. Under Diagnostic Code 5201, limitation of motion to shoulder level (e.g., flexion or abduction to 90 degrees) warrants a 20 percent rating. Limitation of motion to midway between side and shoulder level (e.g., flexion or abduction to 45 degrees) warrants a 20 percent rating. Limitation of motion to 25 degrees from the side warrants a 30 percent rating. Id. The Board notes that these evaluations are based on the minor extremity as the Veteran is right-hand dominant. See 38 C.F.R. § 4.69. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I Turning to the evidence, the Veteran underwent VA examinations during the appeal in May 2013 and October 2019, where range of motion testing revealed flexion and abduction to be relatively normal, with both reduced to 170 degrees at worst. During the examinations the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he had increased pain, he did not describe a range of motion at the time of this examination which would warrant a higher rating. In this regard, while he denied flare-ups in 2013, in 2019 he reported flare-ups but described them as consisting of increased pain with activity. This does not suggest the requisite limitation of motion necessary for a higher rating which, in this Veteran’s case, would require limitation of motion to 25 degrees from the side, which would be in stark contrast to the 180 degrees of normal motion exhibited during this examination. Moreover, the 2019 VA examiner determined that pain, weakness, fatigability and incoordination would not significantly limit functional ability with flare-ups or after repetitive use over time. Treatment records do not show greater limitation of motion than the above examination findings, nor do the Veteran’s statements. Of note, during his testimony before the undersigned in November 2018, the Veteran reported only pain, not limitation of motion. Given the above, the Board finds that the criteria for a disability in excess of 20 percent is not warranted as the record is against a finding that range of motion of the left shoulder was limited to such an extent that would warrant a higher rating. The estimated limitation of motion in his left upper extremity would need to be 25 degrees from the Veteran’s side for the next higher, 30 percent rating to be warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Such estimation is not suggested by the evidence of record. Thus, a higher evaluation is not warranted for limitation of motion. The Board has also considered whether the Veteran is entitled to an increased rating under any alternative diagnostic code for the shoulder. However, the evidence fails to establish ankylosis or impairment of the humerus. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202. Further, while Diagnostic Code 5203 (impairment of the clavicle or scapula) provides for a maximum rating of 20 percent, or directs rating on impairment of function of the contiguous joint, the Veteran is rated on the impairment of function and cannot receive a higher rating under Diagnostic Code 5203, nor can a separate rating be awarded without pyramiding. 38 C.F.R. §§ 4.14, 4.71a. Therefore, the Board concludes that the symptoms associated with the Veteran’s left shoulder disability do not more nearly approximate the criteria for a rating higher than 20 percent at any point during the appeal and the claim must be denied. 38 C.F.R. §§ 4.3, 4.7. 3. PTSD. The Veteran was awarded service connection for PTSD in March 2007 and was assigned a 30 percent rating. In the rating decision on appeal, the RO continued the Veteran’s 30 percent rating. He asserts that the severity of this disability warrants a higher rating. Based on the following, the Board concludes that the Veteran’s disability picture, to include his statements, does not more nearly approximate the degree required for a higher or separate rating. The Veteran’s PTSD is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Turning to the evidence, the Veteran was afforded VA examinations during the relevant period on appeal in May 2013 and October 2019. It was noted at each examination that the Veteran is diagnosed with not only PTSD, but also an unspecified personality disorder with cluster B traits that were attributed to pre-service, childhood incidents. The May 2013 examination also noted alcohol dependence. While the Veteran reported symptoms indicative of the criteria for a disability rating higher than 30 percent, such as difficulty adapting to stressful circumstances and a difficulty establishing and maintaining effective work and social relationships, the 2013 examiner opined that only the Veteran’s reported symptoms of mild anxiety, reexperiencing, guilt, hypervigilance, and startle were attributable to his PTSD and the 2019 examiner opined that only the Veteran’s reported symptoms of depression, anxiety, suspiciousness, and chronic sleep impairment, were attributed to his PTSD. Thus, while overall the Veteran’s occupational and social impairment approximated, at worst, deficiencies in most areas, his PTSD symptoms by themselves were noted by the 2019 examiner to only manifest occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. This is consistent with the Veteran’s current, 30 percent rating. The 2013 examiner opined that 50 percent or less of the Veteran’s functional impairment is attributable to his PTSD, and the Board finds his reported symptoms of mild anxiety, reexperiencing, guilt, hypervigilance, and startle more closely approximate a 30 percent rating. The remaining symptoms were found to be attributable to the Veteran’s other, nonservice-connected psychiatric diagnoses. The Veteran’s medical treatment records during the appeal are not in significant conflict with the findings upon VA examination regarding the symptomology attributed solely to his PTSD. Based on the foregoing, the Board finds that the Veteran’s PTSD during the course of the appeal has more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The symptoms attributed to the Veteran’s PTSD by the VA examination reports approximates the criteria for the 30 percent disability rating that is currently assigned under Diagnostic Code 9411. See 38 C.F.R. § 4.130. The evidence of record is against the assertion that the Veteran’s PTSD by itself has more nearly approximated occupational and social impairment with reduced reliability and productivity, and does not suggest symptoms due to PTSD such as: circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short and long-term memory; impaired judgment or abstract thinking. Id. Thus, as the Veteran’s PTSD symptoms more closely approximate his current 30 percent rating, the claim for an increased rating must be denied. As to all of the increased rating claims denied above, the Board is sympathetic to the Veteran’s lay statements that his disabilities are worse than currently evaluated and those statements have been considered. The Veteran is competent to report observable symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. REMANDED While the Board regrets further delay, the Veteran’s claim for a disability rating in excess of 10 percent prior to October 15, 2019, and in excess of 20 percent thereafter, for a right calf disability must be remanded. Subsequent to the Board’s last remand, the rating for the Veteran’s service-connected right calf disability was increased from 10 to 20 percent effective October 15, 2019. While a supplemental statement of the case (SSOC) was issued as to the period for which his 20 percent rating is now in effect, it did not address the period on appeal prior to October 15, 2019 for which a 10 percent rating is still assigned. Accordingly, remand is required for the issuance of a SSOC. 38 C.F.R. § 19.31(c). The matter is therefore REMANDED for the following action: Readjudicate the issue of entitlement to a disability rating in excess of 10 percent prior to October 15, 2019, and in excess of 20 percent thereafter, for service-connected right tibialis muscle damage. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.