Citation Nr: 21062353 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-39 294 DATE: October 7, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee disability is denied. Effective July 12, 2013, an initial rating of 50 percent for post-traumatic stress disorder (PTSD) prior to October 23, 2020 is granted. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) beginning October 23, 2020 is denied. FINDINGS OF FACT 1. The Veteran's left knee disability has been manifested by range of motion from 0 degrees extension to no worse than 130 degrees flexion, with pain. 2. Throughout the appeal, the Veteran's service-connected PTSD has not been productive of occupational and social impairment with deficiencies in most areas or total occupational and social impairment during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260. 2. The criteria for entitlement to an initial rating of 50 percent for post-traumatic stress disorder (PTSD) effective July 12, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) beginning October 23, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 2001 to June 2011 with service in Iraq. His decorations include the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded by the Board in June 2019 for additional development. The Board notes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, here the evidence reveals that the Veteran is employed and that he has not reported that his service-connected disabilities on appeal precludes substantially gainful employment. See VA Examination, October 2020 and December 2020. Therefore, the issue of entitlement to a TDIU is not before the Board. Increased Rating 1. Entitlement to a rating in excess of 10 percent for left knee disability. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski,1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown,8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca,8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki,25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West,13 Vet. App. 376, 382 (2000); Johnston v. Brown,10 Vet. App. 80, 85 (1997). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. The Veteran contends that his left knee disability is more disabling than contemplated. He asserts that his knee pain has greatly increased since he started working a second part-time job that requires him to stand for long hours. See VA Form 9, July 2017. The Veteran's disability is rated at 10 percent disabling under Diagnostic Code 5260 beginning July 12, 2013. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated 0 percent disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Full flexion of the leg is to 140 degrees and full extension is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904 (d)(2), the Board will proceed to adjudicate the Veteran's claim. Effective February 7, 2021, the new regulation changed Diagnostic Code 5003 to degenerative arthritis, other than post-traumatic, changed Diagnostic Code 5257 from the subjective terms to detailed types of instability resulting in specific types of impairments, and changed Diagnostic Code 5262 from subjective criteria (slight, moderate, and marked impairment of the knee or ankle), to evaluating under the Diagnostic Codes for the knee or ankle, whichever is the highest rating. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's left knee disability warrants a rating in excess of 10 percent based on limitation of motion. For an increased rating based on limitation of motion, the evidence must minimally establish that the Veteran's left knee disability is manifested by flexion limited to 30 degrees (Diagnostic Code 5260), and/or by extension limited to 15 degrees (Diagnostic Code 5261). At no point during the appeal period has the Veteran's left knee flexion shown to be less than 130 degrees or left knee extension shown to be other than normal, even with consideration of pain on range of testing, after repetitive range of motion testing, and with consideration of limitation of motion during flare-ups. See VA Examination, February 2014 and December 2020; see also Medical Treatment Records, May 2014. In fact, the December 2020 VA examination noted no pain on examination and no additional loss of range of motion after repetitive use or during a flare up. The examiner stated that the subjective reports of pain are consistent with retropatellar pain syndrome without any observable loss of function and only a 10-degree loss of range of motion. Hence, the criteria for an increased rating under either Diagnostic Code 5260 or 5261 are not met. In addition, the Veteran has never demonstrated or been diagnosed with ankylosis of the left knee, instability, impairment of the tibia and fibula, genu recurvatum, or shown to have dislocated semilunar cartilage. See VA Examination, February 2014 and December 2020. Therefore, Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and 5263 are not applicable. 2. Entitlement to an initial rating of 50 percent for PTSD prior to October 23, 2020. 3. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) beginning October 23, 2020. The Veteran's PTSD is currently rated at 10 percent disabling, beginning July 12, 2013, and 50 percent disabling, beginning October 23, 2020. He contends that his PTSD is more severe than the currently assigned rating and that he is entitled to a higher rating. See Notice of Disagreement, April 2014. The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of symptoms and the extent to which they cause occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). As part of his claim for a higher initial rating the Veteran was afforded a VA examination in February 2014. During the examination the Veteran reported that he has a good relationship with his parents and wife. He stated that he does not participate in activities outside the home but spends time with his young daughter. The examiner stated that the Veteran's symptoms do not meet the diagnostic criteria for PTSD but noted a current diagnosis of unspecified trauma and stressor-related disorder. The examiner also noted symptoms of anxiety, chronic sleep impairment, and disturbances of motivation and mood. During an October 2018 mental health initial evaluation, the Veteran reported that his wife reports that he seems to have violent dreams during which he appears to be fighting. The Veteran stated that he rarely remembers dreams but does wake up anxious sometimes. He also reported that he feels somewhat down most of the time, endorsed sleep disturbance, anhedonia, low energy, poor appetite, feeling distant from most people, and concentration difficulties (attributes to physical pain), and reported that he currently gets five hours of sleep per night with difficulty maintaining sleep. The Veteran denied symptoms of psychosis, including hallucinations and delusions, denied suicidal or homicidal ideation, plan, or intent and denied having a history of self-directed violence. In June 2019, the Board concluded that the findings of the February 2014 VA examination are not sufficiently specific for evaluation purposes. Moreover, the diagnostic criteria under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM V) may offer criteria more directly applicable to the Veteran's diagnosis. For these reasons, the Board remanded for a new examination. In October 2020, a VA examination was conducted where the examiner diagnosed the Veteran with PTSD and noted that the Veteran has occupational and social impairment with reduced reliability and productivity. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran's behavior during the examination was noted as alert, oriented, and cooperative, with fair affective range, and his thinking was goal directed without looseness. The Veteran and his wife submitted statements throughout the appeal noting the severity of his disability. In a March 2014 statement, the Veteran's wife noted that she has witnessed the Veteran having nightmares, difficulty in crowds, and anxiety. When his anxiety is triggered, it can take several hours for him to calm down enough to function. Similarly, in the July 2017 VA Form 9, the Veteran asserted that his PTSD has made it so that he does not want to be around people, avoids all conversations, has memory loss, and is suspicious of everyone. Considering the frequency, severity, and duration of the Veteran's impairment to assess his disability picture, the Board finds that the evidence shows that the Veteran's PTSD has approximated the criteria for a 50 percent rating for the appeal. The preponderance of the evidence reflects that the Veteran's PTSD does not warrant a 70 percent rating, as his PTSD is not productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. During the appeal period, the Veteran did not demonstrate inappropriate behavior, obsessive/ritualistic behavior which interfere with routine activities, panic attacks, or suicidal or homicidal ideation and he was oriented in person, place, and time. His behavior was noted as alert, oriented, and cooperative, and he continues to have a relationship with his wife and some of his children. See VA Examination, February 2014 and October 2020. Additionally, the evidence does not show that the Veteran has exhibited total occupational and social impairment. In this regard, there is no evidence that the Veteran experienced 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. The evidence shows that throughout the appeal, the Veteran retained ability to complete social and occupational tasks beyond that contemplated by a 100 percent schedular rating. Therefore, the Veteran's symptoms did not manifest to the degree required for a 100 percent rating as the competent and credible medical evidence of record does not indicate total occupational and social impairment. Because the preponderance of the evidence is against entitlement to an evaluation in excess of 50 percent, the Veteran's service-connected PTSD warrants a rating of 50 percent, but no higher, throughout the appeal. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.