Citation Nr: 21061707 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-08 494 DATE: October 5, 2021 ORDER An initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. Prior to January 27, 2015, an initial 10 percent rating for left knee strain is granted. From January 27, 2015, an initial rating higher than 10 percent for left knee strain is denied. Prior to January 27, 2015, an initial 10 percent rating for right knee strain is granted. From January 27, 2015, an initial rating higher than 10 percent for right knee strain is denied. An initial compensable rating for residuals of a right hand fracture with arthritic changes to the 5th carpometacarpal joint is denied. Service connection for a right foot disability is denied. Service connection for a left foot disability is denied. Service connection for a right ankle disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate total occupational and social impairment. 2. Prior to January 27, 2015, the Veteran had painful motion of the left and right knees. 3. From January 27, 2015, the Veteran's left and right knee disabilities were not manifested by flexion of 45 degrees or less, extension of 10 degrees or less, or any recurrent subluxation or lateral instability. 4. The Veteran's right hand fracture residuals are manifested by painful motion of the 5th carpometacarpal joint. 5. Bilateral pes planus existed prior to service and was not aggravated by service, and the Veteran does not have another diagnosed foot disability during or approximate to the pendency of the claim. 6. The Veteran has not had a right ankle disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. Prior to January 27, 2015, the criteria for an initial 10 percent rating for left knee strain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. From January 27, 2015, the criteria for an initial rating higher than 10 percent for left knee strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5257, 5260. 4. Prior to January 27, 2015, the criteria for an initial rating higher than 10 percent for right knee strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. 5. From January 27, 2015, the criteria for an initial rating higher than 10 percent for right knee strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5257, 5260. 6. The criteria for an initial compensable rating for residuals of a right hand fracture with arthritic changes to the 5th carpometacarpal joint are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5230. 7. The criteria for service connection for a left or right foot disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 8. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from August 2009 to July 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision. It was previously remanded for additional development in January 2019. Increased Ratings PTSD The Veteran is currently assigned a 70 percent rating for her PTSD under DC 9411, which is part of the General Formula for Mental Disorders (General Formula). Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. Most of the Veteran's symptoms, including severe symptoms such as suicidal ideation and periods of violence, are contemplated by the current 70 percent rating. After a thorough review of the record, the only PTSD manifestations that are consistent with a higher 100 percent rating were documented in April 2015 and February 2019 VA examinations. Specifically, both examiners noted that the Veteran had an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. However, this manifestation, alone, does not warrant a higher rating. First, it did not manifest with sufficient duration or frequency because VA outpatient records from before and after both examinations documented his normal appearance and hygiene, with no indication of any impairment in activities of daily living. Second, despite finding that the Veteran had an intermittent inability to perform such activities, both examiners concluded that the Veteran did not have total impairment from his PTSD. Rather, he had deficiencies in most areas, consistent with the current 70 percent rating. Finally, an April 2021 VA examiner did not indicate that impairment with daily activities was present and did not find that the Veteran had total impairment. For these reasons, a rating higher than 70 percent is not warranted. Left knee strain Right knee strain Because the adjudication of both knee claims is essentially the same, the Board will discuss them together. Prior to January 27, 2015, both knees are assigned a 0 percent rating under 38 C.F.R. § 4.71a, DC 5257. From January 27, 2015, both knees are rated at 10 percent under DC 5257. From March 9, 2021, both knees are still rated at 10 percent, but the DC was switched to 5260. As an initial matter, the Board finds that a 10 percent rating is warranted for both knees prior to January 27, 2015. Under 38 C.F.R. § 4.59, painful joints are entitled to the minimum compensable rating. During his November 2013 VA examination, the Veteran reported experiencing flare-ups of his knees. Although there was no pain documented during range of motion testing, subsequent examination reports do show pain. Therefore, the Veteran is entitled to the minimum compensable rating (i.e., 10 percent) for both knees based on his credible statements of knee pain. However, a rating higher than 10 percent is not warranted at any time during the appeal period. DC 5260 addresses limitation of flexion of the leg. A noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. The Veteran had VA examinations in November 2013, April 2015, February 2017 and May 2021. At no time was flexion measured at less than 70 degrees, even when accounting for pain and repetitive testing. In April 2015 and February 2017, the Veteran had full flexion. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. During all four VA examinations during the appeal period, the Veteran had full extension, including when considering pain and repetitive testing. The criteria for DC 5257 were amended during the appeal period. Previously, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. However, the Veteran had normal knee stability on all four VA examinations from the appeal period. There was no history of recurrent subluxation, and the Veteran's outpatient records are otherwise negative for any complaints of buckling or "giving way." Therefore, the evidence is against a finding of slight instability, and a rating under DC 5257 is not warranted. Effective February 7, 2021, the rating criteria for DC 5257 were amended. They provide for ratings for patellar instability or recurrent instability or subluxation when there is a diagnosed condition involving the patellofemoral complex, or a sprain or ligament tear. Because the Veteran has not been diagnosed with either, a rating under these criteria is not appropriate. Finally, ratings under DCs 5256 (ankylosis), 5258 (dislocated semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage), 5262 (impairment of the tibia and fibula) and 5263 (genu recurvatum) are not applicable because the Veteran has not been diagnosed with the required manifestations. Residuals of a right hand fracture with arthritic changes to the 5th carpometacarpal joint The Veteran is currently assigned a 0 percent rating under 38 C.F.R. § 4.71a, DC 5010-5230 for his right hand disability. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5230 addresses limitation of motion of the ring or little fingers, and only allows for a 0 percent rating. The Board has considered other DCs related to the hand or digits. However, VA examinations from November 2013 and February 2017 both documented normal range of motion of the fingers without pain, including with repetitive testing. These findings do not correspond to any compensable ratings under the codes applicable to the hand or digits. His VA treatment records do not contain any findings relating to his right hand disability. The Board has considered the Veteran's statements. Specifically, during his VA examinations, he reported difficulty with twisting bottle tops and having aching pain on the right lateral aspect of his hand. Under 38 C.F.R. § 4.59, painful joints are entitled to the minimum compensable rating. However, as discussed above, there is no compensable rating for limited motion of the ring or little finger, and the Veteran does not have functional impairment in any other digit. Therefore, a compensable rating for the right hand is not warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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). Right foot disability Left foot disability The Veteran has a current diagnosis of pes planus. His July 2009 enlistment examination noted moderate, asymptomatic pes planus. Therefore, pes planus existed prior to service. The principles of service connection do not generally apply to conditions which existed prior to military service. However, a claimant may receive compensation for a preexisting condition which was aggravated by service. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. In this case, there was no increase in disability during service. Indeed, there was no further mention of pes planus after the Veteran's enlistment examination. Moreover, a November 2013 VA examination shows that pes planus was asymptomatic. There was no pain with use or manipulation of the feet, no indication of swelling, and no characteristic callosities. The Veteran's VA outpatient records do not reflect any findings or treatment related to pes planus. Because pes planus preexisted service and did not increase during service, service connection based on aggravation is not warranted. Additionally, the Veteran claimed service connection for chronic toe arthritis. However, the Board concludes that the Veteran does not have toe arthritis or any other disability of the feet and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Aside from pes planus, the November 2013 VA examiner concluded that there was no other foot disability present. The examination including imaging studies which showed no toe arthritis or other condition other than pes planus. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) which held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, the November 2013 VA examination did not identify any pain or functional impairment, and the Veteran's outpatient records are negative for any findings related to a foot or toe disability. While the Veteran believes he has toe arthritis, he has not shown the necessary medical knowledge or expertise to provide a competent diagnosis in this case. The issue is medically complex, as it requires, among other things, the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, pes planus existed prior to service and was not aggravated by service, and the Veteran does not have another diagnosed foot disability or associated functional impairment. Therefore, service connection is not warranted. Right ankle disability The Board concludes that the Veteran does not have a current diagnosis of a right ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. The Veteran underwent a VA examination in November 2013. He had normal range of motion without pain. This was unchanged following repetitive testing. He also had normal strength and ankle stability. Imaging studies of the ankle were also normal. The examiner stated that there was no objective evidence to support a current diagnosis. The Veteran's outpatient records do not otherwise show a right ankle disability. As discussed, the Veteran is not competent to diagnose a right ankle disability. The competent medical evidence does not establish a current disability or any associated functional impairment. Therefore, service connection is not warranted. REASONS FOR REMAND TDIU Evidence generated during the appeal period suggests that the Veteran may not be capable of gainful employment due to his service-connected disabilities. However, further development is required to determine when he was, and was not, employed. VA treatment records from February 2018 noted that he occasionally worked as a barber, but separate records from that same month indicate he had not worked in a while. The evidence also shows that he engaged in vocational rehabilitation and earned a network administrator certificate, but it is not clear whether he engaged in any related employment after that. On remand, the Veteran should complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. This form gathers relevant information regarding a claimant's employment and educational histories and concludes with a series of sworn certification statements. The matter is REMANDED for the following action: Provide the Veteran and his representative with a VA Form 21-8940 and advise them to complete and return the form in support of his claim for a TDIU. If the completed form is returned, conduct any additional development that may be warranted based upon the information in the form. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.