Citation Nr: 21061835
Decision Date: 10/05/21	Archive Date: 10/05/21

DOCKET NO. 18-51 940
DATE: October 5, 2021

ORDER

Entitlement to a temporary 100 percent evaluation for a left knee disability is dismissed.

Entitlement to a temporary 100 percent evaluation for a right knee disability is dismissed.

Whether new and material evidence have been presented to reopen the claim for service connection for right Achilles' tendonitis is dismissed. 

Whether new and material evidence have been presented to reopen the claim for service connection for a right-hand condition is dismissed. 

Whether new and material evidence have been presented to reopen the claim for service connection for left wrist is dismissed.

Whether new and material evidence have been presented to reopen the claim for service connection for right wrist is dismissed.

Whether new and material evidence have been presented to reopen the claim for service connection for right ankle is dismissed. 

Whether new and material evidence have been presented to reopen the claim for service connection for left ankle is dismissed.

Whether new and material evidence have been presented to reopen the claim for service connection for left ring finger fracture is dismissed.

Whether new and material evidence have been presented to reopen the claim for service connection for bilateral testicular pain is dismissed.

Whether new and material evidence have been presented to reopen the claim for service connection for right occipital temporal area is dismissed.

Whether new and material evidence have been presented to reopen the claim for service connection for left arm scar is dismissed.

Whether new and material evidence have been presented to reopen the claim for service connection for seborrheic keratosis is dismissed.

Entitlement to a rating higher than 30 percent for PTSD is dismissed.

Entitlement to a higher rating then 10 percent for tinnitus is dismissed. 

Entitlement to a rating higher than 20 percent for gout is dismissed. 

Entitlement to a compensable rating for bilateral hearing loss is dismissed. 

Entitlement to a compensable rating for a left shoulder sprain with degenerative changes is dismissed. 

Service connection for fibromyalgia is dismissed. 

Service connection for irritable bowel syndrome is dismissed. 

Service connection for diabetes mellitus is dismissed. 

Service connection for gum damage is dismissed. 

Service connection for a left elbow condition is dismissed. 

Service connection for bilateral dry eyes is dismissed. 

Service connection for hyperlipidemia is dismissed. 

Service connection for a right elbow condition is dismissed. 

Entitlement to a higher initial rating, and an effective date prior to July 6, 2018 for the grant of service connection for degenerative arthritis of the spine with intervertebral disc syndrome (claimed as cervical spine condition), is dismissed. 

Entitlement to a higher initial rating, and an effective date prior to July 6, 2018 for the grant of service connection for right upper extremity radiculopathy, is dismissed. 

Entitlement to a higher initial rating, and an effective date prior to July 6, 2018 for the grant of service connection for left upper extremity radiculopathy, is dismissed

Revision, based on clear and unmistakable error (CUE), of a December 2013 rating decision which reduced the rating for a left shoulder sprain with degenerative changes from 10 percent to noncompensable, is denied. 

Revision, based on CUE, of a December 2013 rating decision which reduced the rating for left knee degenerative joint disease from 10 percent to noncompensable, is denied. 

Revision, based on CUE, of a December 2013 rating decision which reduced the rating for right knee degenerative joint disease from 10 percent to noncompensable, is denied. 

New and material evidence has been received, the application to reopen the service connection for a traumatic brain injury (TBI) is granted.

Service connection for a TBI is denied. 

Entitlement to a separate, 10 percent rating for left knee instability is granted. 

Entitlement to a separate, 10 percent rating for right knee instability is granted. 

REMANDED

Service connection for migraine headaches is remanded. 

Service connection for a left hip disability is remanded. 

Service connection for a right hip disability is remanded. 

Entitlement to a rating higher than 20 percent for degenerative disc and joint disease lumbar spine is remanded. 

Entitlement to a certificate of eligibility for specially adapted housing (SAH) is remanded.

Entitlement to a certificate of eligibility for a special home adaptation grant is remanded. 

Entitlement to special monthly compensation based on aid and attendance is remanded. 

FINDINGS OF FACTS

1. On April 23, 2021, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, notified VA of his desire to withdraw his claims for the following: entitlement to a temporary 100 percent evaluation for bilateral knee degenerative joint disease; petitions to reopen claims of service connection for Achilles tendonitis, a right hand condition, a bilateral wrist condition, a bilateral ankle condition, left ring finger fracture, bilateral testicular pain, right occipital temporal area, a left arm scar, and seborrheic keratosis; and entitlement to increased ratings for service-connected PTSD, tinnitus, gout, hearing loss, and left shoulder sprain with degenerative changes; and entitlement to service connection for fibromyalgia, irritable bowel syndrome, diabetes mellitus, a bilateral elbow condition, gum damage and missing teeth, bilateral dry eyes, hyperlipidemia; and entitlement to higher initial ratings for degenerative arthritis of the spine with intervertebral disc syndrome (claimed as a cervical spine disability) and bilateral upper extremity radiculopathy; and entitlement to earlier effective dates for the grants of service connection for degenerative arthritis of the spine with intervertebral disc syndrome (claimed as a cervical spine disability), and bilateral upper extremity radiculopathy.  

2. The Veteran's combined rating would not have resulted in the reduction of total compensation payments after the reduction from a 10 percent to a noncompensable rating for a left shoulder sprain; thus, the failure to provide the Veteran with notice of the proposed reduction in rating was not required. 

3. The Veteran's combined rating would not have resulted in the reduction of total compensation payments after the reduction from a 10 percent to a noncompensable rating for a left knee disorder; thus, the failure to provide the Veteran with notice of the proposed reduction in rating was not required. 

4. The Veteran's combined rating would not have resulted in the reduction of total compensation payments after the reduction from a 10 percent to a noncompensable rating for a right knee disorder; thus, the failure to provide the Veteran with notice of the proposed reduction in rating was not required.  

5. Evidence received since the July 2012 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's service connection for TBI.

6. The competent evidence of record reflects that the Veteran does not have a current diagnosis of a traumatic brain injury.

7. The evidence of record, both medical and lay show that the Veteran's left knee disability is manifested by pain and instability. 

8.  The evidence of record, both medical and lay show that the Veteran's right knee disability is manifested by pain and instability.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of a substantive appeal as to the claim for entitlement to a temporary 100 percent evaluation for a left knee disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

2. The criteria for withdrawal of a substantive appeal as to the claim for entitlement to a temporary 100 percent evaluation for a right knee disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

3. The criteria for withdrawal of a substantive appeal as to the claim to reopen the claim of service connection for a right achilles tendonitis have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

4. The criteria for withdrawal of a substantive appeal as to the claim for service connection for a right hand condition have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

5. The criteria for withdrawal of a substantive appeal as to the claim to reopen the claim of service connection for a left wrist condition have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55

6. The criteria for withdrawal of a substantive appeal as to the claim to reopen the claim for service connection for a right wrist condition have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55

7. The criteria for withdrawal of a substantive appeal as to the claim to reopen the claim of service connection for a right ankle condition have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55. 

8. The criteria for withdrawal of a substantive appeal as to the claim to reopen the claim of service connection for a left ankle condition have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

9. The criteria for withdrawal of a substantive appeal as to the claim to reopen the claim of service connection for a left ring finger condition have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55. 

10. The criteria for withdrawal of a substantive appeal as to the claim to reopen the claim of service connection for a bilateral testicular pain have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

11. The criteria for withdrawal of a substantive appeal as to the claim to reopen the claim of service connection for a disorder of the right occipital temporal area have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55. 

12. The criteria for withdrawal of a substantive appeal as to the claim to reopen the claim of service connection for a left arm scar have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55. 

13. The criteria for withdrawal of a substantive appeal as to the claim to reopen the claim of service connection for a seborrheic keratosis have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

14. The criteria for withdrawal of a substantive appeal as to the claim for increased rating for PTSD have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55. 

15. The criteria for withdrawal of a substantive appeal as to the claim for increased rating for tinnitus have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

16. The criteria for withdrawal of a substantive appeal as to the claim for increased rating for gout have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

17. The criteria for withdrawal of a substantive appeal as to the claim for increased rating for hearing loss have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

18. The criteria for withdrawal of a substantive appeal as to the claim for increased rating for a left shoulder sprain have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

19. The criteria for withdrawal of a substantive appeal as to the claim for service connection for fibromyalgia have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

20. The criteria for withdrawal of a substantive appeal as to the claim for service connection for IBS have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

21. The criteria for withdrawal of a substantive appeal as to the claim for service connection for diabetes mellitus have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

22. The criteria for withdrawal of a substantive appeal as to the claim for service connection for a left elbow condition have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

23. The criteria for withdrawal of a substantive appeal as to the claim for service connection for gum damage/missing teeth have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

24. The criteria for withdrawal of a substantive appeal as to the claim for service connection for bilateral dry eyes have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

25. The criteria for withdrawal of a substantive appeal as to the claim for service connection for hyperlipidemia have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

26. The criteria for withdrawal of a substantive appeal as to the claim for service connection for a right elbow condition have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

27. The criteria for withdrawal of a substantive appeal for a higher initial rating and an effective date prior to July 6, 2018 for the grant of service connection for degenerative arthritis of the spine with intervertebral disc syndrome (claimed as cervical spine condition) have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55. 

28. The criteria for withdrawal of a substantive appeal of a higher initial rating and an effective date prior to July 6, 2018 for the grant of service connection for right upper extremity radiculopathy have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

29. The criteria for withdrawal of a substantive appeal of a higher initial rating and an effective date prior to July 6, 2018 for the grant of service connection for left upper extremity radiculopathy have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55

30. The criteria for revision, based on CUE, of a December 2013 rating decision, which reduced the rating for left shoulder sprain with degenerative changes from 10 percent to noncompensable, have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a), (e).

31. The criteria for revision, based on CUE, of a December 2013 rating decision, which reduced the rating for left knee degenerative joint disease from 10 percent to noncompensable, have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a), (e).

32. The criteria for revision, based on CUE, of a December 2013 rating decision, which reduced the rating for right knee degenerative joint disease from 10 percent to noncompensable, have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104.

33. New and material evidence has been received to reopen the previously denied claim for service connection for a TBI. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).

34. The criteria for entitlement to service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303.

35. The criteria for a separate 10 percent rating for left knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.7, 4.71a, Diagnostic Code 5257.

36. The criteria for a separate 10 percent rating  for a right knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.7, 4.71a, Diagnostic Code 5257. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1986 to December 2010.  The Veteran is in receipt of several medals and awards, including the Combat Action Badge. 

This matter is on appeal from various rating decisions issued in April 2015, December 2015, and September 2018. The Veteran testified before the undersigned Veterans Law Judge at a June 2021 Board hearing. A transcript is of record.

Withdrawn Claims

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 19.55.

At his June 2021 Board hearing, the Veteran expressed his desire to withdraw his claims to reopen the issues of service connection for a right ankle condition, left ankle condition, left ring finger fracture, bilateral testicular pain, scar of the right occipital temporal area, a left arm scar, and seborrheic keratosis, right hand condition, left wrist disability and right wrist disability, achilles tendonitis; entitlement to a temporary total evaluation for bilateral knee disabilities. He also wished to withdraw his claims for entitlement to earlier effective dates and higher initial ratings for a cervical spine disability and bilateral upper extremity radiculopathy. He also expressed his desire to withdraw his service connection claims for fibromyalgia, IBS, diabetes mellitus, left elbow, gum damage and missing teeth, bilateral dry eyes, hyperlipidemia, and a right elbow condition. He also withdraws his increased rating claims for PTSD, tinnitus, gout, hearing loss, and a left shoulder disability. 

The hearing transcript reflects that the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action on his part, expressed a desire to withdraw the aforementioned claims. Accordingly, the Board does not have jurisdiction to review those issues and those appeals are dismissed.

Clear and Unmistakable Error

Revision, based on clear and unmistakable error (CUE), of a December 2013 rating decision which reduced the rating for a left shoulder sprain with degenerative changes from 10 percent to noncompensable 

Revision, based on CUE, of a December 2013 rating decision which reduced the rating for left knee degenerative joint disease from 10 percent to noncompensable 

Revision, based on CUE, of a December 2013 rating decision which reduced the rating for right knee degenerative joint disease from 10 percent to noncompensable 

In a July 2018 VA Form 21-526b, the Veteran contended that there is CUE in the December 2013 rating decision because the RO initiated an improper reduction of the ratings for his left knee, right knee, and his left shoulder. He argues that the RO did not afford him the pre-reduction protections and procedures required under 38 C.F.R. § 3.105(e), which requires, inter alia, notification of the proposed reduction in evaluation, a statement of the facts and reasons for such reduction, and an opportunity to submit evidence indicating that the reduction should not be made.

The Veteran was granted service connection for degenerative joint disease of the bilateral knees, and a left shoulder sprain in a December 2011 rating decision. Each disability was assigned an initial rating of 10 percent, effective January 1, 2011. The Veteran was provided written notice of the rating decision on December 6, 2011. He did not file a timely notice of disagreement and no new and material evidence was received within the one year period following notice. Hence, the December 2011 rating decision became final. See 38 U.S.C. § 7105 (b), (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302(a). 

The untimely notice of disagreement was accepted as an increased rating claim. In a December 2013 rating decision, the RO reduced each of the 10 percent ratings to noncompensable, effective December 2, 2013.   

Once a rating decision is final, it may only be revised on the basis of CUE. 38 C.F.R. §§ 3.104-3.105. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. More succinctly, CUE is an error that is undebatable. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions that existed at the time were incorrectly applied. Review for CUE in a prior decision is based on the record and law that existed when that decision was made. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992); see also 38 U.S.C. § 5109A. Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991).

When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. See Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE had the same effect as if the corrected decision had been made on the date of the reversed decision. Id. 

The following are examples of situations that are not CUE: (1) a new medical diagnosis that corrects an earlier diagnosis considered in the decision; (2) the Secretary's failure to fulfill the duty to assist; and (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403 (d). Moreover, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the decision challenged, there has been a change in interpretation of the statute or regulation. 38 C.F.R. § 20.1403 (e).

As a threshold matter, the Board finds that the argument advanced by the Veteran alleges CUE with the requisite specificity. Thus, the Board will proceed to the merits.

The evaluation of the propriety of the rating decision issued in December 2013 requires consideration of two separate standards, the standard relating to CUE and the standard governing reduction of benefits. If there was not CUE in that December 2013 decision, then there was no basis for the reduction in rating. Conversely, if there was CUE in that December 2013 decision, because the remedy used to correct that error was reduction in rating, the proper procedures governing reduction must be observed. 

The Veteran, through his attorney, specifically argues that the RO did not afford him the pre-reduction protections and procedures required under 38 C.F.R. § 3.105(e). 

The Board finds there was not CUE in the December 2013 rating decision due to a failure to adhere to pre-reduction protections and procedures required under 38 C.F.R. § 3.105(e). In that decision, the AOJ reduced the ratings for the left knee disability, right knee disability, and a left shoulder disability from 10 percent to a noncompensable rating, effective December 2, 2013. His total disability rating was 70 percent from January 1, 2011 and was increased to 80 percent effective December 10, 2012, after the grant of higher rating for gout. However, once the reductions were implemented his ratings returned to 70 percent, effective December 2, 2013. 

Under the provisions of 38 C.F.R. § 3.105, a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105 (e). As is discussed in detail below, such notice was provided to the Veteran prior to the reduction.

The Veteran was not notified of the proposed reduction of his disability rating in accordance with 38 C.F.R. § 3.105 (e). Here, while the increase in one condition assigned a higher overall combined rating of 80 percent, the reduced ratings for the right knee, left knee, and left shoulder resulted in the same combined evaluation of 70 percent, which is the same total rating as when he had a compensable rating for his left knee disability, right knee disability, and a left shoulder disability. As the rating action that implemented the rating reduction did not change the Veteran's overall disability rating, a reduction of compensation payments did not occur, and the procedural safeguards of 38 C.F.R. § 3.105 (e) do not apply. See VAOPGCPREC 71-91 (Nov. 7, 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed.Cir.2007). 

Reopened Claim

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to the general rule allows for reopening where new and material evidence exists. 38 U.S.C. § 5108; Shade v. Shinseki, 24 Vet. App. 110 (2010).

New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a).

When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Id. 

The Veteran's claim for entitlement to service connection for TBI was denied by a July 2012 rating decision. That decision became final since the Veteran did not timely file an appeal or submit new and material evidence within a year of that decision. See 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302(a). Thus, for the matter to be reopened, new and material evidence is required.

Since the July 2012 rating decision, new and material evidence has been received. For example, the claims file includes updated VA treatment records as well as a new VA examination dating March 2015, which include a thorough neurological testing and addresses whether a TBI is currently present.  The Board finds that the evidence added to the record since the July 2012 rating decision is new and material as it addresses a previously unestablished element. 38 C.F.R. § 3.156. As new and material evidence has been received, the Veteran's service connection claim for TBI is reopened. 

The RO also has reopened the previously denied claim and adjudicated the matter on the merits, most recently in an April 2016 statement of the case.  Accordingly, the Board will proceed to address this issue on the merits below. See Hickson v. Shinseki, 23 Vet. App. 394 (2010).

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

Secondary service connection requires that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310.

Service connection for certain chronic diseases, such as arthritis, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Traumatic Brain Injury

At the June 2021 Board hearing, the Veteran testified that he sustained a TBI from parachute jumps and an IED explosion while serving in Iraq. Through his testimony, he recalled the attack and was unconscious for a brief period. While he did not notice any immediate issues, he reportedly began experiencing headaches and dizziness in the weeks after. He stated that upon his return from his tour in Europe, he began treatment at a VA facility. 

During his active duty service, a July 2010 VA physical examination listed several injuries and diseases claimed by the Veteran. The list, however, did not note TBI, headaches, or dizziness as part of his ailments. A neurological note indicated that the Veteran answered questions appropriately and demonstrated logical thought process. His cranial nerves II and XII were intact. Tests of his sensory, motor, and coordination yielded normal results. He was pleasant, cooperative, and well oriented throughout the evaluation. 

VA mental health treatment records dating February 2014 showed that the Veteran complained of memory and concentration difficulties over the recent weeks. After a TBI screen test, the VA physician noted that the Veteran demonstrated symptoms that overlapped with his PTSD diagnosis such as concentration, memory, attention, and focus. The Veteran also reported some cognitive difficulties in which he related to loss of consciousness in service. 

In a February 2014 medical treatment letter, the Veteran's VA psychiatrist indicated that the Veteran had been treated in the Trauma Recovery Program at the Atlanta VA medical center since November 2013. The psychiatrist indicated that the Veteran is diagnosed with PTSD and major depressive disorder because he witnessed many traumatic experiences in service. She did not, however, diagnose the Veteran with TBI and made no mention of his reported IED explosion. 

The Veteran underwent a standardized assessment for cognitive testing in August 2014. There, he self-reported moderate to severe problems with memory and attention. However, pursuant to a diagnostic test, the Veteran demonstrated mild severity in subtests of memory. Overall, he presented 'within normal limits,' by objective standards in cognitive domain, attention, memory, executive functions, language, visuospatial skills, and clock drawing task. 

His September 2014 VA treatment record noted that the Veteran was seen for headaches and cognitive communication therapy. He reported having problems distinguishing his TBI symptoms from his PTSD symptoms but have recently noticed cognitive changes. The Veteran reported to the VA physician that he was diagnosed with mild TBI after sustaining 4 head injuries while deployed in 2005. While on a mission to clear IEDs, the Veteran's convoy was hit by an IED. The impact slammed him into the side of the vehicle, causing him to lose consciousness. He recalled being disoriented for about 30 minutes and had lost specific memories of certain events. He also recalled having stiffness and soreness in his shoulders accompanied by headaches. The Veteran was diagnosed with mild TBI, but by personal history. He continued to report dizziness, headaches, nausea, sensitivity to light, and problems with balance. 

The Veteran was afforded a VA TBI examination in March 2015. The examiner found that the Veteran had not been diagnosed with TBI. A thorough cognitive examination found that the Veteran complained of mild memory loss, attention, concentration, executive functions, but without objective evidence on testing. His judgment, social interaction, orientation, motor activity, consciousness, and visual spatial orientation were reported as normal. He did not have subjective symptoms or neurobehavioral effects indicative of TBI. He was able to communicate by spoken and written language. The Veteran did report residuals which include headaches. In conclusion, the examiner found that the Veteran's cognitive functioning remains intact from a neurocognitive point of view. His day to day experience of memory lapses is likely a reflection of psychological factors, specifically severe depression, chronic medical issues and fatigue resulting from disturbed sleep. 

In reviewing the Veteran's history, the VA examiner noted that the Veteran was a combat veteran who was deployed during both gulf wars. He is in receipt of a combat action badge and many decorations and honors. The Veteran claimed that he sustained a TBI from an IED blast in 2005 while in Iraq. His job assignment was that of a 'route clearer,' and was responsible for removing IED and other explosive devices for friendly forces. When he was exposed to the IED blast, he recalled sustaining an injury to his head, shoulder, and left arm. He was seen by a medic in Iraq and reported losing consciousness for an unspecified amount of time. When asked, the Veteran indicated that he felt a shock wave when the blast hit the truck. He had been wearing a helmet and was knocked out of his seat. He recalled not being able to move or speak immediately after the blast. He also recalled having ringing in his ears. He was taken to a medic and was evaluated back at Camp Russell Meyer and was treated overnight. He recalled being sore with headaches and nausea and was placed on light duty for 5 days. Based on his verbal report of head injury, he was given a TBI clinical diagnosis at the Atlanta VAMC. The Veteran's service treatment records were carefully reviewed but records from 2005 were not available. While records from 2005 and early 2006 were not available for review, the VA examiner noted that subsequent treatment records between 2006 and 2010 did not suggest that the Veteran had previously sustained a head injury in 2005. Furthermore, a recent neuropsychological testing did not provide any evidence of TBI. Rather, the evidence suggests that the Veteran's other mental health conditions may have caused the Veteran's current symptoms. Therefore, it is less likely than not that he sustained a TBI during his military service. 

A March 2016 VA treatment note indicated that the Veteran has been diagnosed with TBI by his personal history. The Veteran underwent another TBI evaluation in January 2017, in which the examiner noted that the Veteran had not demonstrated new symptoms of TBI since his last diagnosis. In June 2017, the VA physician noted that the Veteran has traumatic brain injury with residual problems. 

In support of his claim, the Veteran's spouse submitted a statement indicated that she noticed psychological changes in the Veteran after his reported IED incident. Since then, he struggled with severe PTSD, depression, anxiety, memory problems, and panic attacks. He has reached out several times for help with PTSD programs and Cognitive Behavioral Therapy, and Exposure therapy. 

Furthermore, the Veteran also submitted a letter from his VA physician from the Traumatic Brain Injury Polytrauma System of Care, indicating that the Veteran has received chronic treatment for his post traumatic migraines, and would continue to do so. Thereafter, VA treatment in July 2019 noted that the Veteran started a new TBI pain group. 

Upon review of the record, the Board finds that service connection for TBI is not warranted. 

The Board notes that the overall treatment records seem contradictory as some records suggest a diagnosis of TBI, while others do not. For example, a September 2014, March 2016 and June 2017 VA treatment records indicate that the Veteran has TBI and residuals of TBI. However, February 2014 medical letter from the Veteran's psychiatrist did not report any diagnosis of TBI. Moreover, a thorough VA neurological examination in March 2015 did not find a diagnosis of TBI. Nevertheless, the Veteran continued to self-report a diagnosis of TBI, which influenced several VA mental treatment notes. While the Veteran believes he has a current diagnosis of TBI, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). 

As such, the Board must rely on most probative medical finding, namely the March 2015 VA examination for TBI. The March 2015 found that the Veteran's prior diagnosis of TBI were merely based on his own personal history rather than medical treatment records from service or subsequent records post service. According to the 2015 diagnostic neurological testing, the Veteran reported mild memory loss, attention, concentration, executive functions, but without objective evidence on testing. His judgment, social interaction, orientation, motor activity, consciousness, and visual spatial orientation were reported as normal. He did not have subjective symptoms or neurobehavioral effects indicative of TBI. While service treatment records in 2005 were unavailable, the examiner found that treatment records between 2006 to 2010 did not suggest TBI symptoms or indicate TBI care. Moreover, the Veteran's reported TBI symptoms are more likely related to his service-connected psychiatric disorder. 

Since the record presents no competent evidence to establish a present TBI disability during the appeal, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Service connection for TBI is therefore, not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

Increased Ratings

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  

Left and Right Knee Degenerative joint disease 

It is the Veteran's contention that his bilateral knee disabilities warrant compensable ratings. At his June 2021 Board hearing, the Veteran argued that he is entitled to at least a 10 percent for painful flexion for each knee. He also seeks a separate disability rating of 20 percent under Diagnostic Code 5257 for instability. 

The Veteran's increased rating claim for his service-connected bilateral knee degenerative joint disease was received in December 2013. His knees are currently rated 10 percent prior to December 2, 2013; and noncompensable thereafter, under 38 C.F.R. § 4.71a, DC 5260-5019.

Knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum).

Additionally, if the knee condition involves arthritis, the knee disability may be rated under provisions for evaluating arthritis. Arthritis due to trauma is rated as degenerative arthritis according to Diagnostic Code 5003.  Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, the disability is to be rated as follows: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the former version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

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. 

The words "slight/mild," "moderate," and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that the use of terminologies such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

With the change in regulations as outlined above effective from February 7, 2021, Diagnostic Code 5257 now contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability.

For recurrent subluxation or instability, a 10 percent is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent is warranted for the unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

For patellar instability, a 10 percent is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.

Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.

Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

In his December 2013 statement in support of claim, the Veteran indicated that his knees have gotten worse. He has been experiencing daily pains and that it is getting harder for him to walk, bend, squad, and stretch. 

Review of a Disability Benefits Questionnaire shows that during his December 2013 VA examination, the Veteran complained of flareups that impact the function of his knees. A range of motion testing of the right knee revealed a forward flexion of 140 degrees or greater with no objective evidence of painful motion. His right knee extension was to zero degrees with no evidence of pain. He was able to perform a repetitive use testing with three repetitions without resulting in additional loss of motion. A range of motion testing of the left knee revealed flexion to 140 degrees or greater with no evidence of pain. His left knee extension was to zero degrees with no evidence of pain. He was able to complete repetitive use testing without resulting in additional loss of motion. Muscle strength testing showed that he retained full strength in both knees, scoring a five out of five in both flexion and extension. A joint stability test showed no problems with instability, subluxation or a meniscus condition in either knee. There was no evidence of ankylosis in either knee. He did not report having to use any assistive devices to help with mobility. The Veteran indicated that during a flare up he can walk about one to two hours with frequent breaks. However, he cannot stand for more than a few minutes. He added that driving a stick shift vehicle was difficult to do during a flare up. 

Private treatment records between April 2014 and July 2014 showed that the Veteran had been seeking pain treatment for his left and right knee. He reported increasing pain in both knees that had been progressing for the past year. He complained of swelling in his knees but no locking sensations of giving way. In June 2014, VA treatment records noted that the Veteran began using knee braces. 

In August 2014, the Veteran began receiving injections in his right knee as part of pain management. September 2014 private treatment records noted chronic bilateral knee pain and confirmed a diagnosis of bilateral knee degenerative joint disease. 

A January 2015 private treatment note indicated that the Veteran complained of increased bilateral knee pain. Unlike previously, the Veteran uses a walker to assist with mobility. MRI scans taken in September 2015 of the right knee revealed no issues with the ligaments. There was no tear identified in the medial and lateral meniscus. There were no focal areas of the marrow edema to suggest any acute abnormality of the bones and cartilage. The scans however, revealed a mild lateral patellar subluxation of the left knee. Although, there were no issues with the medial meniscus or ligaments. Imaging of the lateral meniscus suggested a small cleavage tear but was not confirmed. 

A September 2015 private treatment record of the left knee noted that his cruciate ligament and collateral ligaments were intact. There was no tear in his left medial meniscus. There was no significant joint effusion. However, there was a subtle horizontal intrasubstance signal involving the mid aspect of the anterior horn, where a small cleavage tear could not be excluded. Mild lateral patellar subluxation was noted in the left knee. There was elongated appearance of the inferior pole of the patella, with additional well corticated calcifications noted in the proximal patellar tendon, compatible with sequela of previous traction apophysitis. 

A February 2016 private treatment note indicated that the Veteran's right knee pain is infrapatellar worse upon extension-based activities. His left knee is medial joint line as well as anterior aspect of the knee. A physical examination revealed a range of motion of 100 to 0 in both knees. There was no instability with valgus or varus stressing. Lachman and drawer tests were negative. 

A September 2016 knee survey taken by a private physician revealed that the Veteran complained of clicking sounds and catching in his knees. He complained of swelling and severe stiffness affecting his range of motion. He reported extreme difficulty going up and down the stairs and severe difficulty when standing upright. The Veteran indicated that his overall knee condition affects the activities of daily living. His condition poses extreme difficulties when running, jumping, kneeling, and twisting.

In June 2017, a private treatment record regarding the left and right knee reported no tenderness of the lateral patellar facet, the medial patellar facet, or superior pole patella. A range of motion test showed that the right knee extension was normal but extension to 5 degrees. His left knee range of motion was normal in both flexion and extension. There was no evidence of pain or crepitus. There was also no pain with passive or active motion. There was no laxity, subluxation, or ligamentous instability. A strength test revealed normal strength with a score of five out of five in both flexion and extension. 

The Veteran ultimately underwent a new surgery in January 2016 for a right knee removal of osteophyte with possible patellar tendon repair. VA treatment records also noted that the Veteran underwent an arthroscopy for the left knee in 2015. 

Private treatment records dated in April 2018 noted that the Veteran complained of instability during a physical examination. He required a medial unloader hinged knee brace. The physician noted that the Veteran had an underlying deformity, confirmed by his x-rays. 

A November 2018 VA physical therapy consult note indicated that the Veteran had been complaining of increased knee pains. Radiological test results showed no evidence of a fracture or dislocation. He demonstrated mild osteoarthritis within the medial and lateral joint compartments. Additional findings suggested thickening of the patellar tendon.  

The Veteran was afforded another VA examination in February 2019. There, he continued to report aching pains in both knees with occasional flare ups. An initial range of motion testing showed that his right and left knee had a forward flexion was to 120 degrees an extension to zero degrees. The examining physician noted objective evidence of pain with weight bearing and crepitus. The Veteran was able to complete a repetitive use testing with three repetitions without resulting in additional loss of range of motion. Further examination revealed that the Veteran experiences pain, weakness, fatigability, or incoordination that significantly limit functional ability when the joint is used repeatedly over a period of time. However, additional range of motion test did not show additional limitation in his range of motion in either knee. A muscle strength test found that the Veteran retained normal strength in both knees, scoring a five out of five in both flexion and extension. There was no objective evidence of muscle atrophy or ankylosis. A joint instability test found no recurrent subluxation, lateral instability, or recurrent effusion. The examiner did not find any meniscal condition in either the left or the right knee. However, he noted that the Veteran underwent and arthroscopic surgery on the left knee in 2015 and 2016 in the right knee. In compliance with Correia, additional testing revealed no objective evidence of pain on non-weight bearing in either knee. There was no objective evidence of pain on passive range of motion. 

At his June 2021 Board hearing, the Veteran testified that he has had several injections in his left knee for pain management and has undergone physical therapy. Due to his condition, he requires support when he bends his knee or when he goes up and down stairs. Despite surgery, the Veteran continued to experience sharp pain and instability, even requiring an upgraded brace and a walker.  

Upon evaluation of the evidence of record, Diagnostic Code 5256 is not applicable because the evidence does not show ankylosis of either knee.  There is no allegation to the contrary.  As the Veteran had never undergone any surgery to remove his cartilage, Diagnostic Code 5259 is not applicable. Diagnostic Code 5262 is also not applicable for either knee because the Veteran's knees do not involve the impairment of the tibia or the fibula.  There is no allegation to the contrary.  There is no evidence of nonunion or malunion of the either knee.  There is no allegation to the contrary.  Furthermore, without the showing of genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing), a disability rating under Diagnostic Code 5263 is not warranted.  There is no allegation to the contrary. 

The Board also finds that diagnostic codes 5258 and 5259 are not applicable as the medical evidence do not show a meniscal condition, nor did it show a meniscectomy to remove his cartilage of either knee. 

The Board will now determine whether a higher rating is warranted for the Veteran's limitation of motion for the Veteran's left and right knee. 

Under Diagnostic Code 5261, a 10 percent disability rating is assigned when extension is limited to 10 degrees, and a 20 percent disability rating is assigned when extension is limited to 15 degrees.  A 30 percent disability rating is assigned when extension is limited to 20 degrees, and a 40 percent disability rating is assigned when extension is limited to 30 degrees.  Finally, a 50 percent disability rating is assigned when extension is limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.  At no point during the period on appeal did the Veteran demonstrate a limited extension in his right knee. At most, the Veteran's extension of his left knee was limited to 5 degrees. 

Under 5260, a rating in excess of 10 percent is warranted when the range of motion of a knee is functionally limited to 30 degrees or less.  Here, the flexion in the Veteran's right and left knee was most limited at the most recent examination when he had 120 degrees of flexion.  During the one year look-back period prior to December 2, 2013, the criteria for a rating in excess of 10 percent for limited flexion was not met. At no point from December 2, 2013 did the Veteran show a limited flexion in either knee that is functionally limited to 30 degrees or less. Thus, a separate compensable rating for limited flexion is not warranted. 

VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. A knee disability warrants at least a minimum compensable rating for the knee joint pursuant to provisions of 38 C.F.R. § 4.59.

The Board, however, finds that a separate rating of 10 percent, and not higher, for instability for both the left and right knee under the old criteria are warranted. 

Prior to February 7, 2021, Diagnostic Code 5257 provides for a 10 percent rating for knee impairment characterized by slight recurrent subluxation or lateral instability. The Veteran has consistently and competently reported symptoms suggestive of pain and instability. January 2015 and September 2015 private treatment notes indicated that the Veteran had a mild lateral patellar subluxation of the left knee. A February 2016 private treatment note also reported the Veteran's infrapatellar pain of the right knee. Then, in a September 2016 private bilaterally knee questionnaire noted complaints of severe swelling and stiffness that affects his everyday activities. The Veteran ultimately underwent surgical repair for both knees. But despite treatment, the Veteran continued to complain of instability, requiring a medial unloader hinged knee brace. By February 2019, the Veteran reported crepitus, weakness, and incoordination of his left and right knee. Additionally, the Veteran has testified at his June 2021 Board hearing that he continues to experience instability in his knees, now requiring advanced braces and even a wheelchair. 

The Board notes that diagnostic code 5257 does not require objective medical evidence of 'lateral instability' for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Based on the evidence, the Board finds that, affording the Veteran the benefit of the doubt, his knee instability warrants a separate 10 percent rating for his left and right knee for the entire period on appeal. The Veteran's knee instability is not more accurately described as moderate. The medical records do not specifically describe instability of the knee joints and VA examiners have consistently found that the knee joints are normal on all stability tests. The Board finds that knee instability that causes functional impairment but is undetectable on all forms of examination is best characterized as slight in nature. Overall, the lay and medical evidence does not indicate the presence of symptoms more nearly approximating moderate severity.

Finally, the Board notes that the Veteran's increased rating claim for his left and right knee is most beneficial under the old criteria rather than the revised version of diagnostic code 5257. From February 7, 2021, in order to receive a rating higher than 10 percent, medical evidence must show a sprain, incomplete, or complete ligament tear as evidence of recurrent subluxation or instability. This has not been shown. While the Veteran has been treated with surgery, evidence indicate that he underwent a tendon repair, rather than for a ligament injury. As for a higher rating under patellar instability, the Veteran has not been diagnosed with a patellofemoral complex with recurrent instability after surgical repair. 

Accordingly, the Board finds that a compensable rating of 10 percent is warranted for each of the Veteran's left and right knee for the period on appeal. 

REASONS FOR REMAND

Headaches (to include secondary to TBI) 

It is the Veteran's contention that his headaches are a result of a TBI incurred during service. 

At his June 2021 Board hearing, the Veteran testified that he has had chronic headache treatments, including Botox treatments for the last several years. Due to the severity of the headaches, it can induce nausea and depression. 

Service treatment records did not reflect complaints or treatment of a chronic headache. A June 2010 VA examination during active duty did not list headaches as one of his chief complaints. 

In September 2014, VA treatment records indicate that the Veteran was seen for migraine headaches where he complained of pain in his left and right temple causing dizziness. He also reported nausea with migraines and light sensitivity. The Veteran told his physician that he had problems with distinguishing his TBI symptoms from his PTSD symptoms.  A July 2015 VA treatment record noted that the Veteran had been treated for headaches with Gabapentin, which was unsuccessful. His headaches have many contributors and have sequela like clusters which were difficult to treat with medication. In June 2017, the Veteran reported improved headaches with Botox injections. 

The Veteran's medical records do not support a clinical diagnosis of traumatic brain injury that relates to his military service. Given the denial of service connection for TBI herein, entitlement to service connection for headaches pursuant to a secondary theory of entitlement is not warranted. Since the underlying claimed disorder of TBI is not service-connected, the Veteran's claim for headaches as secondary to TBI is without legal merit. 

However, the medical evidence appears to indicate that the Veteran's psychiatric symptoms such as memory loss, lack of sleep, and headaches overlap with his PTSD diagnosis. Thus, a remand to obtain a medical opinion regarding whether the Veteran's current chronic headaches relate to his service-connected PTSD is warranted. 

Lumbar Spine Disability 

The Veteran is currently seeking a rating higher than 20 percent for his service-connected lumbar spine disability. He was last afforded a VA examination for his service-connected lumbar spine disability in December 2013.  

At his June 2021 Board hearing, the Veteran testified to having chronic pain in his back, flare ups, muscle spasms and an abnormal gait. He indicated that the pain could become so severe that it causes difficulty for him to walk and has even received a prescription for a wheelchair.  

Since the December 2013 VA examination, the evidence, including both medical and lay, suggests that his lumbar spine disability has worsened in severity. Thus, the Board finds that a remand is warranted for a new VA examination to determine the current severity of the Veteran's lumbar spine disability. 

 

Left and Right Hip Condition

The Veteran seeks service connection for a bilateral hip condition. He indicated that his left hip condition had always been an issue, but it has worsened despite physical therapy.  

At his June 2021 Board hearing, the Veteran testified that his bilateral hip condition likely began in service due to jumping out of planes and helicopters. He asserted that the wear and tear on his hip joints ultimately led to his current hip condition. He recalled that after several jumps, he began having back pain and hip pain shortly after. The Board notes that his DD214 show that he is in receipt of a parachutist badge and air assault badge. 

Service treatment records do not specifically document a chronic hip disorder; however, a treatment note in September 2009 shows he did not have full range of motion in both his hips.  The Veteran was diagnosed with a left hip disorder less than three years after service, and with a right hip disorder several years thereafter. The claims file currently include a medical opinion pertaining to the nexus of the Veteran's left and right hip condition. Therefore, a remand is necessary for an etiology opinion.  

Special Monthly Compensation Based on Aid and Attendance/Housebound

The Veteran's claim for SMC based on aid and attendance/housebound is remanded. 

At his June 2021 Board hearing, the Veteran argues that he requires the aid and attendance of another due to his service connection disabilities. He has difficulties with feeding himself, especially during gout attacks. His back condition significantly limits his mobility, regularly requiring assistance when getting out of bed and tending to hygiene needs, especially shaving. He relies on his wife to help him in the shower and needs a chair in the shower for support. He heavily relies on his wife to cook for him and prepare all his meals and arrange his medications.  

Based on his November 2014 examination for housebound status, the Veteran was unable to feed himself due to gout attacks and spasms. These symptoms prevent him from raising his arm to feed himself. He is also unable to prepare his own meals but was noted that he did not know how to cook. He indicated that he requires assistance in bathing and tending to other hygiene needs as he often fell in the shower due to his bilateral knee condition, his lumbar spine disability, and his shoulders disability. It was noted that he requires nursing home care due to his back spasms, obstructive sleep apnea, PTSD, and TBI. He also requires assistance in medication management. His spouse reportedly assists him with everything including paying his bills, grocery shopping, and running errands. The examining physician noted that the Veteran's gout attacks cause him to become incapacitated for a long period of time. The swelling in his joints of the hands, fingers, elbows all create difficulties with his grip. Due to the symptoms, the Veteran is unable to clothe himself, shave, or bathe. 

The issue of SMC is inextricably intertwined with the issues of service connection for a left and right hip disorder, service connection for headaches, and increased rating for his low back disability. The determination of whether the Veteran's conditions are service connected may have a direct impact on whether SMC is granted. As such, the issue of SMC must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board also notes that on remand, the Veteran should be afforded a new examination for housebound status or permanent need for regular aid and attendance.  

Specially Adapted Housing and Special Home Adaptation 

It is the Veteran's contention that given his service-connected disabilities, moving around in the current layout of his house have become extremely difficult. He requests modifications such as a full bathroom in the lower level, where he spends most of his time. More recently, because of his bilateral knee condition and his low back disability, he requires the use of advanced braces and a wheelchair. He has asserted that he has severe muscle spasms and an abnormal gait, making it difficult for him to move around on his own.  See June 2021 Board hearing transcript. 

The Veteran is presently in receipt of VA service connection benefits for obstructive sleep apnea at 50 percent, PTSD at 30 percent, gout at 20 percent, degenerative arthritis of the spine at 20 percent, radiculopathy of the left and right upper extremity each at 20 percent, status post right shoulder rotator cuff repair with degenerative changes 10 percent, degenerative disc and joint disease lumbar spine at 10 percent, and tinnitus at 10 percent. Given the recent grant, the Veteran is also rated at 10 percent for instability of each knee. However, the Board has remanded the claims for service connection for a left and right hip and increased rating for a low back disability. 

The issues of specially adapted housing and special home adaptation are inextricably intertwined with the remanded issues of increased rating for a low back condition and service connection for left and right hip condition.

The matters are REMANDED for the following action:

1. Schedule a VA examination pertaining to the Veteran's headaches. The examiner is asked to determine the following: 

a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's headaches are related to his military service? Why or why not? 

b) Is it at least as likely as not that the Veteran's headaches are proximately caused by his service-connected PTSD? Why or why not? 

c) Is it at least as likely as not that the Veteran's headaches are aggravated (made worse) by his service-connected PTSD? Why or why not? 

2. Schedule a VA examination to determine the current severity of the Veteran's service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

3. Schedule a VA examination pertaining to the Veteran's left hip. The examiner is asked to address the following:

a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current bilateral hip disorder is caused by or related to his military service? Why or why not? 

In providing the requested opinion and rationale, the examiner should consider the Veteran's description of his in-service injuries and symptoms, post-service symptoms, and: i) Veteran's in-service duties which include parachuting from aircraft. He received the Pathfinder Badge, Parachutist Badge, and Air Assault Badge; ii) a September 2009 service record indicating that the Veteran did not have a full range of motion in his hips; iii) the June 2021 Board hearing testimony that his in-service duties caused problems with his hips/joints; and iv) the clinical diagnosis of left hip arthrosis in 2013, shortly after service. 

If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted.  Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed bilateral hip disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

b) Is it at least as likely as not that the any current bilateral hips arthritis (i) began during active service, (ii) manifested within one-year after discharge from service, or (iii) was noted during service with continuity of the same symptomatology since service?

3. Schedule a VA examination to determine whether the impairment caused by his service-connected disabilities renders the Veteran housebound or in need or regular aid and attendance. 

The examiner should elicit from the Veteran a detailed description of the functional limitations caused by his various service-connected disabilities and how they affected and/or precluded his ability to conduct individual activities of daily living without assistance.

If the Veteran's limitation is due to nonservice-connected disability, the examiner should so state and identify what condition(s) resulted in the functional impairment. If the examiner cannot determine whether certain functional impairment, to include worsening depression, memory loss, and fatigue, is more likely than not attributable to a nonservice-connected, rather than service-connected disability, he/she should so state.

4. After all development has been completed, readjudicate the Veteran's eligibility to financial assistance for specially adapted housing or special home adaptation.

 

D. JOHNSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Yeh, 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.