Citation Nr: 21064205 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-15 383A DATE: October 19, 2021 ORDER Entitlement to an initial rating of 100 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to an initial rating greater than 10 percent for right knee strain is denied. Entitlement to an initial rating greater than 10 percent for left knee strain is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed as moot. FINDINGS OF FACT 1. Throughout the appeal period, the severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximated total occupational and social impairment. 2. Throughout the appeal period, the Veteran's right knee strain has manifested by pain and flexion limited to no less than 130 degrees. 3. Throughout the appeal period, the Veteran's left knee strain has manifested by pain and flexion limited to no less than 130 degrees. 4. The Veteran has been granted a 100 percent rating for his PTSD and the issue of entitlement to TDIU is moot for the entire appeal period. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a disability rating of 100 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. For the entire period on appeal, the criteria for a rating greater than 10 percent for right knee strain based on limitation of flexion have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. For the entire period on appeal, the criteria for a rating greater than 10 percent for left knee strain based on limitation of flexion have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5260. 4. Entitlement to TDIU is moot. 38 U.S.C. § 1114; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2004 to December 2007. He appealed an August 2011 rating decision by the Agency of Original Jurisdiction (AOJ). These matters were remanded by the Board in October 2018 and August 2021. Increased Rating Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). 1. PTSD The Veteran seeks a 100 percent evaluation for his service-connected PTSD, which is rated under 38 C.F.R. § 4.130, DC 9411. See September 2018 Appellate Brief. Under that DC, a 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent disability rating is warranted for total occupational and social impairment. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the time of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Considering all relevant evidence, the Board finds that the Veteran's PTSD symptoms more closely approximate the criteria for a 100 percent disability rating for the entire appeal period. Throughout the appeal period the Veteran's PTSD symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; flattened affect; circumstantial, circumlocutory or stereotyped speech; difficulty understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and impaired impulse control. See August 2011, March 2016, and June 2019 PTSD examination reports. Notably, the Veteran was also found to have intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, with a friend noting that the Veteran had to be reminded to shower and brush his teeth. See August 2011 and March 2016 PTSD examination reports, see also January 2016 statement from P.B. This latter symptom is listed as one of the criteria for a 100 percent rating. VA treatment records indicate that the severity of the Veteran's PTSD symptoms has remained persistent throughout the appeal period. In July 2012, the Veteran was involved a drunken altercation at his apartment complex. The Veteran reportedly made suicidal statements to law enforcement personnel following the incident and was involuntarily admitted to a VA hospital for psychiatric evaluation. During his stay the Veteran's insight and judgment were noted to be poor, and his thought process and problem-solving skills were deemed immature. The Veteran was discharged after a day. The record further demonstrates the Veteran's PTSD symptoms have rendered him unable to function socially or occupationally. During the pendency of his appeal, the Veteran got married and divorced twice, with emotional difficulties in both relationships. See July 2015 Congressional correspondence and June 2019 PTSD examination report; see also May 2013 VA medical record and January 2016 statement from the Veteran's mother S.R. The Veteran's PTSD has substantially interfered with his employment, as he reported he was fired from a job in February 2015 for what was perceived as "yelling" at his supervisor. See April 2015 VA medical record; see also March 2016 PTSD examination report. The Veteran's family and friends reported that the Veteran could not keep a job due to not being able to think clearly or communicate rationally and observed him yelling at people angrily at work. See January 2016 statements from S.R. and J.P. Even when employed, the Veteran stated that his job caused him significant stress and that he was struggling due to his mental health. See September 2018 VA Form 21-4138; see also June 2019 PTSD examination report. Given these facts, the Board concludes that the Veteran's PTSD warrants a 100 percent rating for the entire period on appeal. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.7. 2. Bilateral Knee Strain When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in §§ 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Knee disabilities are generally rated under DCs 5256 through 5263 of 38 C.F.R. § 4.71a. DC 5256 addresses ankylosis of the knee. DC 5257 addresses recurrent subluxation or lateral instability. DC 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of "locking," pain, and effusion into the joint. DC 5259 addresses symptomatic residuals related to removal of semilunar cartilage. DC 5260 addresses limitation of motion on flexion while DC 5261 addresses limitation of motion on extension. DC 5262 addresses impairment of the tibia and fibula from malunion or nonunion. DC 5263 addresses genu recurvatum. The Board must consider the Veteran's service-connected knee disabilities under each DC and apply the appropriate ratings without having any of the symptomatology by duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran cannot receive compensation under two different DCs for the same manifestations of symptoms as this would constitute impermissible pyramiding under 38 C.F.R. § 4.14. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. For rating the knee, changes were made to DCs 5257 and 5262. Additionally, changes were made to DC 5055 for total knee replacement. Thus, both the old and new rating criteria for these DCs will be analyzed by the Board for the Veteran's ratings from February 7, 2021. The Veteran's right and left knee disabilities are presently assigned 10 percent ratings for limitation of flexion under DC 5260. Under DC 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. The April 2011, March 2016, and June 2019 knee examination reports indicate range of motion findings consistent with a noncompensable rating. The April 2011 examination report noted that the Veteran reported pain and stiffness and denied flare-ups. The Veteran's flexion was limited to 130 degrees in each knee, without pain. The Veteran maintained full extension. The March 2016 examination report noted that the Veteran had knee pain at a 4 to 5 out of 10 "all the time," and that he denied flare-ups. The Veteran maintained full extension. Repetitive use testing resulted in no additional limitation of motion. The examiner declined to provide an opinion on the degree to which the Veteran's range of motion would be limited during repeated use over time, as doing so would require speculation. The June 2019 examination report indicated the Veteran reported constant knee pain, a dull ache that he rated a 6 out of 10. He denied flare-ups but said he had pain when ascending and descending stairs and sleeping on his back, and stiffness after driving over two hours. The examiner noted that active and passive range of motion testing demonstrated flexion to 130 degrees, with pain on flexion. The Veteran maintained full extension. Repetitive use testing resulted in no additional loss of function or range of motion. The examiner estimated that with repeated use over time, the Veteran would not experience any additional limitation of motion. Notably, the June 2019 examination report stated that the Veteran's right knee range of motion was "all normal," despite finding that the Veteran's right knee flexion was limited to 130 degrees. In September 2020, the AOJ obtained an addendum opinion to address this inconsistency. The reviewing clinician observed that the Veteran's range of motion was abnormal, as noted by the limitation of flexion to 130 degrees. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court of Appeals for Veterans Claims held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board observes that the March 2016 examination report was not compliant with the Court's guidance in Sharp in that the examiner declined to estimate any additional loss of motion during repeated use over time. However, the June 2019 range of motion findings are Sharp compliant, and as they are most favorable to the Veteran, the Board will consider their applicability for the entire appeal period. However, as there is no indication that the Veteran has been limited to less than 45 degrees of flexion at any time, a rating greater than 10 percent is not warranted. The Veteran's extension has not been limited to a compensable degree at any point during the period on appeal. The evidence, therefore, does not support assigning a separate rating for limitation of extension. 38 C.F.R. § 4.71a, DC 5261. The Board considered whether ratings under other DCs applicable to the knee were warranted during the appeal period. The Veteran has not reported instability or recurrent subluxation of either knee, nor has such been shown elsewhere in the record; thus a rating under DC 5257 is not warranted. Moreover, the Veteran has not been shown to have a meniscal condition, and therefore a rating under DC 5258 or 5259 is also unwarranted. Additionally, there is no indication of ankylosis, tibia or fibula impairment, or genu recurvatum. As such, there is no basis for a separate evaluation under DCs 5256, 5262, or 5263. In sum, a separate rating under other applicable DCs is not warranted. 3. Entitlement to TDIU The Veteran has been granted a schedular rating of 100 percent for PTSD. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. As is potentially relevant here, VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11, 229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Such a scenario is not present here. To obtain SMC for the relevant period, the evidence of record would have to establish that the Veteran's remaining service-connected disabilities entitled him to TDIU or that such disabilities are rated at least 60 percent disabling combined. However, during this period his remaining service-connected disabilities are right and left knee strain, each rated 10 percent disabling, for a combined rating of 20 percent. Moreover, the Veteran has not asserted that his knee disabilities alone prevented him from obtaining or sustaining any kind of employment. Thus, the preponderance of evidence in the record does not support a finding that the Veteran's remaining service-connected disabilities alone prevented him from obtaining or sustaining any kind of employment. Therefore, the issue of entitlement to TDIU is moot. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.