Citation Nr: 21064760 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 07-25 589 DATE: October 21, 2021 ORDER Entitlement to service connection for right foot disability is denied. Entitlement to service connection for right leg muscle disability is denied. For right knee disability, entitlement to a 20 percent disability rating from November 28, 2005, to January 25, 2011, is granted; entitlement to a 10 percent for limitation of flexion and a separate 10 percent rating for limitation of extension, from March 1, 2011, to May 20, 2013, is granted; and entitlement to a disability rating higher than 30 percent, from July 1, 2014, is denied. REMANDED The issue of service connection for asthma is remanded. The issue of service connection for bilateral foot fungus is remanded. The issue of service connection for diabetes mellitus is remanded. The issue of service connection for residuals of a brain tumor, status post removal, is remanded. The issue of service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. No chronic disability of the Veteran's right foot developed during his service or was proximately caused or aggravated by his right knee disability. 2. No chronic disability of the Veteran's right leg muscles developed during his service or was proximately caused or aggravated by his right knee disability. 3. The Veteran's right knee disability produced limitation of motion and functional impairment with pain on motion and reduced endurance from November 28, 2005, to January 25, 2011, produced functional impairment with limitation of flexion and limitation of extension from March 1, 2011, to May 20, 2013, and has produced pain and limitation of motion without severe painful motion or weakness from July 1, 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for right foot disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for right leg muscle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The right knee disability met the criteria for a 20 percent disability rating from November 28, 2005, to January 25, 2011; met the criteria for two separate 10 percent disability ratings from March 1, 2011, to May 20, 2013; and has not met the criteria for a disability rating higher than 30 percent from July 1, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7. 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5257, 5258, 5259, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1971 to April 1972. In November 2005 he submitted a claim for several disabilities including right knee disability and psychiatric disability. In an August 2006 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection, effective November 28, 2005, for right knee chondromalacia patella. The RO assigned a 10 percent disability rating. The RO denied service connection for psychiatric disability. The Veteran appealed to the Board of Veterans' Appeals (Board) the rating assigned for the right knee disability. In a December 2010 statement, the Veteran sought service connection for asthma, foot fungus, diabetes, a right foot disorder, a right leg muscle disorder, and PTSD. In January 2011 the Veteran underwent right knee arthroscopic surgery. In March 2011 the Board remanded to the RO, for additional action, the issue of the rating for the right knee disability. In a February 2012 telephone contact with the RO, the Veteran sought service connection for a brain tumor. In May 2013 the Veteran underwent surgical replacement of his right knee with a prosthetic joint. In a September 2013 rating decision, the RO assigned a temporary 100 percent rating for total replacement of the right knee, from May 21, 2013, followed by a 30 percent rating from July 1, 2014. The RO denied service connection for asthma, foot fungus, diabetes, right foot disability, right leg muscle disability, and brain tumor. The RO denied reopening of a previously denied claim for service connection of a psychiatric disability including PTSD. The Veteran appealed the denials to the Board. In a November 2014 rating decision, the RO assigned a temporary 100 percent rating for right knee chondromalacia patella from January 26, 2011, followed by a 10 percent rating from March 1, 2011. In November 2014 the Veteran indicated, through his representative, that he was continuing his appeal of ratings for his right knee disability. In March 2015 he explained that he was seeking ratings higher than 10 percent for right knee chondromalacia patella. In January 2017 the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge. In a January 2018 decision, the Board remanded to the RO, for additional action, the claims for service connection for asthma, foot fungus, diabetes, brain tumor, and PTSD. 1. Service connection for right foot disability The Veteran contends that right foot problems began in service or are secondary to his service-connected right knee disability. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran had treatment in service for right knee injury. VA has established service connection of disability of his right knee. His service treatment records (STR) do not contain any indication of complaints or disorders involving his right foot. On his separation examination in April 1972, the Veteran marked no for history of foot trouble. The examiner marked normal for the condition of his feet. The Veteran's claims file does not contain medical records from the year following his separation from service. In private treatment in March 1997, the Veteran reported back problems since a motor vehicle accident (MVA) in 1995. He reported low back pain with sciatic-type pains into his left lower extremity and sometimes both lower extremities. In private treatment in March 1998, x-rays of the Veteran's right ankle showed an avulsion or flake fracture off the lateral aspect of the os calcis. In April 1998 a physician noted that the Veteran had right foot injury in an MVA a week earlier. The physician stated that right foot injuries included contusion, strain, and abrasion. The physician noted improvement in the symptoms. The Veteran had private treatment in January 2002 for right foot pain. X-rays of that foot showed no evidence of fracture or other disorder. In September 2003 the Veteran had private treatment for low back pain. The physician observed that the Veteran did not exhibit a gait disturbance when ambulating. The physician found that the Veteran's lower extremities had good strength. In February 2006 the Veteran had private treatment for right knee pain. The physician noted that he had a slight limp. On VA examination in July 2006, the examiner observed that the Veteran walked with a limp on the right leg. The Veteran was able to stand on his heels and toes. There was no evidence of any callosity or abnormal shoe wear. In a November 2006 statement, the Veteran wrote that he had walked with a slight limp since a right knee injury in service. In VA treatment in March 2007, the Veteran reported right knee pain that travelled down to his foot. In January 2009 the Veteran had a VA orthopedic consultation for right knee pain. The physician observed that the Veteran walked with a limp. The physician noted that the Veteran had shoe inserts. In VA treatment in March 2009, it was noted that the Veteran had diabetes that was controlled. The Veteran reported that he was checking his feet and did not have numbness on the bottoms of his feet. In June 2010 he again denied numbness on the bottoms of his feet. In a December 2010 statement, the Veteran wrote that his service-connected right knee disability caused his right foot to turn out from the center of the leg. He stated that he had worn orthotics since his separation from service. In VA treatment in January 2011, the Veteran reported a long history of fungus of the nails of both great toes. The clinician found normal sensation in the bottoms of both feet. In March 2011 the Veteran denied numbness on the bottoms of his feet. In a VA neurology consultation in April 2011, the physician observed that the Veteran had normal gait, station, and foot and leg strength and could stand on his heels and toes. In VA treatment in May 2015, the Veteran reported foot pain. In podiatry treatment in September 2015, he reported that pain in the metatarsals of his right foot began about four years earlier and worsened with prolonged walking. The podiatrist found metatarsalgia in both feet. The podiatrist provided metatarsal pads to reinforce current orthotics. In October 2015, the Veteran reported some decrease in the pain with use of the pads. The podiatrist noted that pain was worse in the right foot than in the left. In VA podiatry treatment in April 2016, the Veteran reported right heel pain that begun about eight weeks earlier. He indicated that he wore custom orthotics that he received in fall 2015. The podiatrist found pain on palpation of the right heel. The podiatrist's impression was plantar fasciitis. Treatment included a corticosteroid injection. In the January 2017 Board hearing, the Veteran reported that for many years his service-connected right knee disability had caused him to have a strange gait. He stated that presently he had persistent right foot pain and foot drop in his right foot. He indicated that in service he began to have right foot problems, and that clinicians related those problems to his right knee problems. He related that he had been wearing orthotics in his shoes for the last ten years. He indicated that problems with his right foot had been present for more than ten years. In VA podiatry treatment in October 2017, the Veteran was seen for recurrent issues with the nails of his big toes. He also requested new orthotics. The podiatrist noted plantar fasciitis with minimal pain on palpation of both feet. In November 2018 the Veteran reported renewed problems with his toenails. His VA treatment records from 2019 through mid-2021 do not reflect any complaints involving his right foot. On VA examination in May 2021, the Veteran reported onset in service in 1971 of intermittent pain in his right great toe. In describing the pain, he pointed to his toenail. The Veteran stated that in 1998 he sustained right foot injury in a car accident and had right foot pain for several years after that. The examiner noted that the Veteran had been treated for onychomycosis, a fungus of the nails. The examiner correctly indicated that VA is addressing the issue of service connection for foot fungus separately from the issue of service connection for disability of the right foot. The examiner noted that in 2015 and 2016 the Veteran had podiatry visits for metatarsal pain, plantar fasciitis, and heel pain. The examiner found that the Veteran presently had no complaints or symptoms consistent with any of those conditions. The examiner found that those conditions had resolved. The examiner found that the Veteran did not have a current disorder of his right foot. The Veteran reported at his 2017 hearing that he began to have right foot problems during his service. His STR do not reflect any right foot problems in service. On his service separation examination, neither he nor the examiner noted any foot problem. There is no indication of treatment for any right foot problem soon after his separation from service. The preponderance of the evidence is against onset in service and continuation after service of any chronic disorder of the right foot. The Veteran contends that his service-connected right knee disability caused or aggravated a right foot problem. He notes that his right knee disability affected his gait. From the 1990s forward, clinicians who treated sometimes observed a right-sided limp and sometimes observed a normal gait. In any case, clinicians who have treated the Veteran for right foot disorders including strain, metatarsalgia, heel pain, and plantar fasciitis have not related any of those disorders to the Veteran's gait. Based on treatment records and examination, the 2021 examiner concluded that various disorders of the Veteran's right foot had resolved and that he had no current disorder affecting that foot. The preponderance of the evidence is against the existence of a chronic disorder of his right foot. It follows that his right knee disability and the effects of that disability on his gait have not proximately caused or aggravated any chronic disorder that foot. In summary, as the preponderance of the evidence is against incurrence of a chronic disorder of the Veteran's right foot disorder during service or development or aggravation of a chronic right foot disorder due to his right knee disability, the Board denies service connection for a right foot disorder. 2. Service connection for right leg muscle disability The Veteran contends that in service he had right leg muscle injury along with the right knee injury associated with his service-connected right knee disability. In the alternative, he contends that his right knee disability altered his gait and caused or aggravated muscle disability in his right leg. During the Veteran's service, he reported in March 1971 that before service, in December 1970, he had a right knee injury treated with use of a cylinder cast following by gradually increased ambulation. In March 1971 he stated that in basic training the condition of that knee was aggravated, and he experienced pain and swelling. A physician ordered an orthopedic consultation. The orthopedist found pain in the knee, without effusion or instability. The orthopedist's impression was resolving sprain and minimal chondromalacia. In December 1971 the Veteran was seen for recurrent right knee pain and swelling after walking. In an orthopedic consultation in January 1972, there was mild patellar crepitation and no instability. On x-rays the knee appeared normal. The orthopedist's impression was mild chondromalacia. The orthopedist prescribed physical therapy with exercises to strengthen the quadriceps muscle. After two weeks of physical therapy, the Veteran reported more frequent effusion in the knee. On separation examination in April 1972, the Veteran reported a history of physical therapy to address chondromalacia patella of his right knee. The examiner marked normal for the condition of the Veteran's lower extremities. In private treatment in March 1997 for low back pain, the Veteran also reported sciatic-type pains into his left lower extremity and sometimes both lower extremities. In September 2003 the Veteran had a private consultation regarding low back pain and right lateral leg pain. He reported that the pain was treated with epidural injections ten years before the 2003 consultation treatment and had recurred six months before the 2003 consultation. He also related a history of arthroscopic surgeries on both knees. The physician observed that the Veteran did not exhibit a gait disturbance when ambulating. On examination the Veteran's lower extremities showed good strength. In February 2006 a physician observed that the Veteran had a slight limp. On VA examination in July 2006, the examiner observed that the Veteran walked with a limp on the right leg. In a November 2006 statement, the Veteran wrote that he had walked with a slight limp since a right knee injury in service. In VA treatment in December 2008, the Veteran reported low back pain that radiated down both legs. In an orthopedic consultation in January 2009, for right knee pain, the physician observed that the Veteran walked with a limp. In June 2010 the Veteran reported gluteal muscle spasm. A physician prescribed medication for muscle spasm. In a December 2010 statement, the Veteran wrote that his service-connected right knee disability causes tightening and spasms in his right leg muscles, including the quadriceps muscle. On VA knee examination in May 2012, muscle strength in the Veteran's right knee was 5/5 for flexion and 5/5 for extension. The Veteran underwent right knee replacement in May 2013. Post-surgery plans included physical therapy to strengthen the quadriceps muscle to control the prosthetic joint. In VA treatment in September 2015, the Veteran had 5/5 muscle strength in all lower extremity muscle groups. In September 2015 he reported worsening of muscle spasms associated with his back pain. In April 2016 the Veteran had left knee replacement surgery. He then had physical therapy to strengthen his left leg muscles. In the January 2017 Board hearing, the Veteran stated in service he was treated for injury of his right knee and right leg muscles. He indicated that he had ongoing muscle problems in his right leg that were related to his right knee problems. In VA treatment in October 2017, the Veteran reported trauma to both knees in an MVA, followed by pain in both distal iliotibial bands (ITB). An orthopedist noted tenderness in those areas. The orthopedist diagnosed ITB syndrome and sprain of the biceps femoris muscles in each leg. Treatment included injection and deep friction massage. The Veteran's VA treatment records from 2018 through mid-2021 do not reflect complaints regarding muscles in his right leg. On VA examination in May 2021, the Veteran reported right hamstring and ITB problems since injury in service in 1971. On examination there was no objective tenderness of the right hamstring or ITB. There were no signs or symptoms of muscle disability in the muscles of his right leg. Muscle strength was 5/5 for hip flexion, knee flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion. There was no muscle atrophy. The examiner found that previous bilateral hamstring and ITB strains had resolved. The Veteran contends that his right knee injury in service was accompanied by injury of right leg muscles. His STR show physical therapy to strengthen his right quadriceps muscle to improve function of his injured right knee. The treatment records do not indicate that any of his leg muscles were injured. In the absence of medical records from soon after service, there is no objective support for right leg problems consistent with muscle injury or disorder. The preponderance of the evidence is against onset in service and continuation after service of any injury or disease of right leg muscles. The Veteran contends that his service-connected right knee disability caused or aggravated problems with his right leg muscles. He notes that his right knee disability affected his gait. From the 1990s forward, clinicians who treated sometimes observed a right-sided limp and sometimes observed a normal gait. The Veteran reported and clinicians found muscles spasms in his gluteal muscles and paraspinal muscles but did not find any leg muscle problems until his 2017 treatment following an MVA. The physician who treated the hamstrings and ITB injuries did not relate those disorders to the Veteran's gait or to his chronic right knee problems. Based on treatment records and examination, the 2021 examiner concluded that the Veteran's 2017 right hamstring and ITB injuries had resolved and that he had no current right leg muscle disorder. The preponderance of the evidence is against the existence of a chronic right leg muscle disorder. It follows that his right knee disability and the effects of that disability on his gait have not proximately caused or aggravated any chronic right leg muscle disorder. In summary, as the preponderance of the evidence is against incurrence of a chronic disorder of the Veteran's right leg muscles during service or development or aggravation of a chronic right leg muscle disorder due to his right knee disability, the Board denies service connection for a right foot disorder. 3. Ratings for right knee disability The Veteran has appealed for ratings for his right knee disabilities higher than 10 from November 28, 2005, to January 25, 2011, 10 percent from March 1, 2011, to May 20, 2013, and 30 percent from July 1, 2014. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating 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. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). When evaluation of a musculoskeletal disability is based on limitation of motion, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened motion, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Evaluation of joints that have painful motion also should include consideration of whether there is pain on both active and passive motion, consideration of whether there is pain with and without weightbearing, and comparison of the range of motion to that of any opposite undamaged joint. 38C.F.R. § 4.59; see Correia v McDonald, 28 Vet. App. 158 (2016). The Court has noted that "A veteran may... be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that his or her disability causes additional functional lossi.e., 'the inability...to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance'including as due to pain." Sharp v. Shulkin, 29 Vet. App. 26, 31-32 (2017); 38 C.F.R. § 4.40. The Court added, "A higher evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Sharp at 32; 38 C.F.R. § 4.45. Pyramiding, that is, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes. The critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). VA's General Counsel has held that limitation of motion and instability of the knee involve different symptomatology and separate ratings specifically are allowed under the Rating Schedule with x-ray evidence of arthritis. See VAOPGCPREC 23-97 and VAOPGCPREC 9-98. VA's General Counsel also has held that separate ratings can be provided for limitation of knee extension and flexion of the same knee joint. VAOPGCPREC 9-2004. The rating criteria for musculoskeletal disorders changed effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. §§ 4.71a, 4.73). Where the rating criteria affecting a disability have changed, VA will apply the earlier version before February 7, 2021, the effective date for the change. From February 7, 2021, VA will apply either the earlier version or the revised version, whichever is more favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). From November 2005 to May 2013 the RO evaluated the Veteran's right knee disability as medial meniscus tear associated with chondromalacia patella, under Diagnostic Code 5260. Under that code, limitation of flexion of the knee was rated at 30 percent if limited to 15 degrees, 20 percent if limited to 30 degrees, 10 percent if limited to 45 degrees, and 0 percent if limited to 60 degrees. In addition, other diagnostic codes potentially apply to the Veteran's right knee disability. Under Diagnostic Code 5261, limitation of extension of the knee was rated at 50 percent if limited to 45 degrees, 40 percent if limited to 30 degrees, 30 percent if limited to 20 degrees, 20 percent if limited to 15 degrees, 10 percent if limited to 10 degrees, and 0 percent if limited to 0 degrees. Under Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee was rated at 30 percent if severe, 20 percent if moderate, and 10 percent if slight. Under Diagnostic Code 5258 dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint was rated at 20 percent. Under Diagnostic Code 5259 a knee that is symptomatic after removal of semilunar cartilage was rated at 10 percent. From the May 2013 replacement of the Veteran's right knee, the RO evaluated disability of that knee under Diagnostic Code 5055. Under that code, replacement of the knee with a prosthesis is rated at 100 percent for one year following the implantation of the prosthesis. After that, the knee disability is rated at 60 percent with chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain, or limitation of motion it is rated by analogy to Diagnostic Codes 5256, 5261, or 5262, with a minimum rating of 30 percent. Under Diagnostic Code 5055 as revised effective February 7, 2021, a resurfaced or replaced knee is rated at 100 percent for four months following implantation of prosthesis. With replacement, the criteria for 60 and 30 percent ratings remain the same as before the 2021 revisions. In private treatment in December 1996, the Veteran reported that since March 1995 he had undergone right knee arthroscopic surgery to address cruciate ligament injury. In private treatment in April 2003, MRI of the Veteran's right knee showed a degenerative tear of the medial meniscus, without evidence of any displaced meniscal fragment. The knee had mild osteoarthritic changes. In September 2003 the Veteran reported a history of arthroscopic surgeries on his right and left knees. In private treatment in February 2006, the Veteran reported increased right knee pain over the past three months. The physician noted that he had a slight limp. MRI showed worsening of the meniscus tear seen in April 2003, new subchondral edema and subchondral cyst, and a possible tear of the anterior cruciate ligament (ACL). The physician diagnosed meniscus tear reinjury and recommended another arthroscopic surgery. On VA examination in July 2006, the Veteran reported right knee problems since 1970. He reported a history of arthroscopic surgeries on his right knee: in 1978, in the 1990s, and in the early 2000s. He stated that presently the knee had pain, He related that the knee had weakness, stiffness, swelling, heat, locking, fatigability, and lack of endurance. He indicated that the knee did not have redness or giving way. He stated that the pain was 5/10 in severity with daily flare-ups to 8/10. He indicated that he used an orthosis but did not wear the knee brace he had received. He reported that his right knee disability caused difficulty walking, stooping, and climbing, which compromised his firefighting and janitorial work and his activities of daily living. The examiner observed that the Veteran walked with a limp on the right leg. On examination, the knee had flexion to 112 degrees and extension to 0 degrees. With repeated flexion there was pain and tightness without fatigue, weakness, or lack of endurance. Testing was negative for ligament problems. There was no evidence of callosity or abnormal shoe wear. In a November 2006 statement, the Veteran wrote that he had walked with a slight limp since right knee injury in service. He stated that despite exercise and physical therapy his right knee problems continued to worsen. He explained that the shoes he wore at the examination were new, and that he did not use his knee brace because the brace irritated his skin. He contended that the impact of his right knee problems on his functional ability warranted a higher rating. In private treatment in August 2007, the Veteran reported right knee pain, swelling, and buckling. He stated that his right knee problems limited his ability to hike. The physician observed a limp that persisted with his gait. The knee had flexion to 120 degrees and extension to 0 degrees. There was a 1+ effusion in the knee. Motor strength was 4+ out of 5 in the quadriceps and 5 out of 5 at the hamstrings and hip flexors. In VA treatment in March 2007, the Veteran reported constant, sharp right knee pain. In February 2008, he stated that walking during activities of daily living caused flare-ups of more severe pain. The clinician noted that motion of the right knee was limited due to pain. On VA examination in July 2008, the Veteran reported constant right knee pain, worse at night. He related intermittent swelling. He stated that the knee gave away daily, but he did not fall. He related that his right knee disability limited him to 500 yards of walking, reduced the time he could ride a stationary bike, and made him no longer able to ride a mountain bike. He stated that his right knee disability made him less able to vacuum as required in his work as a janitor. He stated that because of his right knee disability he had reduced his work to twelve hours a week. The examiner observed a slight to moderate limp on the right. Testing did not show ligament instability. There was a trace of effusion. Muscle strength was 5/5. Motion was to 83 degrees of flexion and 0 degrees of extension. The examiner expressed the opinion that the knee did not have instability, lateral instability, or recurrent subluxation. In VA treatment in December 2008, the Veteran reported that his right knee was giving out and that he had fallen two times. He stated that the knee brace he had was too uncomfortable to wear. He reported that he had shoe inserts. In January 2009 he reported right knee pain and occasional buckling. He indicated that he used a cane. The orthopedist found tenderness and pain in the knee. The knee had good strength and stability. In July 2009 the Veteran reported that knee problems made it difficult to walk and made him no longer able to ride a stationary bike. He stated that his knees did not give way and he did not fall. The orthopedist noted minimal effusion in the right knee. Treatment included a corticosteroid injection. In an August 2009, the right knee had no effusion. In VA treatment in January 2010, the Veteran received a cane to help with walking. In June and July 2010, he received Hyalgan injections in his right knee. In July 2010 he was fitted for a new unloading brace. In January 2011 he had right knee arthroscopic surgery. In VA treatment in April 2011, the Veteran reported that since surgery he had no further catching and effusions in his right knee. He stated that he still had pain with stairs but could walk farther and with less pain. Later in April 2011 he reported more pain and some effusion after activity. In November 2011 he stated that his right knee got sore at times but was in better condition than before the 2011 surgery. On VA examination in May 2012, the Veteran reported that multiple times per day he had flare-ups of severe right knee pain that lasted for hours. He indicated that he occasionally used a brace, occasionally used crutches, and occasionally used a cane. The Veteran's right knee had flexion to 120 degrees, with painful motion from 115 degrees. Extension of the knee was limited to 5 degrees. After three repetitions, flexion was limited to 110 degrees and extension was limited to 10 degrees. On testing the knee ligaments had normal stability. The examiner found that the knee had functional loss due to weakened movement, excess fatigability, instability of station, disturbance of locomotion, and interference with sitting, standing, and weightbearing. The examiner stated that the Veteran's right knee disability impacted his ability to work by impairing squatting, kneeling, stair climbing, and prolonged standing and walking. In VA treatment in December 2012, the Veteran reported continuing and increasing problems in both knees, worse in the right. He stated that knee pain impeded him in getting back to work. In March 2013, the Veteran reported that his right knee gave out on him all day long. He stated that he has lost balance and could not steady himself. The Veteran had right knee replacement surgery in May 2013, followed by rehabilitation. In September 2013 the replaced right knee had 100 degrees of flexion, with effort. The knee lacked 8 degrees of extension. The knee was stable. In April 2014 the Veteran's replaced right knee had a click in the patella region when he walked long distances. The knee was stable and had flexion to 120 degrees and full extension. The orthopedist stated that the patella click was normal. In private treatment in December 2014, right knee x-rays showed an intact prosthesis and no evidence of soft tissue swelling. VA treatment in 2015 and 2016 followed the condition of the Veteran's right and left knees. In April 2015, the Veteran reported that he was still working on rehabilitation from his right knee replacement. In June 2015 an orthopedist noted that the right knee replacement was doing well. In January 2016 the Veteran was noted to use a cane for stability and pain in both knees. In March 2016 the right knee replacement was described as having had good results. The Veteran reported that he walked using a walking stick and that he used a wheelchair for longer distances. The Veteran had left knee replacement surgery in April 2016. In the January 2017 Board hearing, the Veteran report that he continued to have limitation of motion, shooting pains, and weakness in his right knee. He indicated that the condition of his right knee limited the distance he could walk to about 100 yards. He stated that walking even that distance caused limping on his right knee. He indicated that his right knee sometimes buckled. He related that presently he had treatment following up from the replacement of his left knee. In the Veteran's VA orthopedic visit in May 2017, the orthopedist indicated that aches that the Veteran reported were normal with total knee replacement. In VA treatment in February 2020, the Veteran sought treatment for pain in the areas of his replaced knees. The knees had no edema. The clinician prescribed topical pain medication. In March 2020 an orthopedist found synovitis at both replaced knees. In March 2021, the physician stated that the Veteran's bilateral knee pain was well controlled. On VA examination in May 2021, the examiner noted that the Veteran's right total knee replacement in May 2013. The Veteran reported that the current condition of his right knee made him unable to walk more than a block without a break. He used a cane because of his right knee disability. He did not report flare-ups of symptoms in the knee. He did not report instability, recurrent subluxation, or frequent effusion in the knee. The knee had flexion to 120 degrees and extension to 0 degrees. There was pain on flexion with active and passive motion. The pain on motion did not cause functional loss. The examiner described the post-replacement condition of the knee as intermediate degrees of residual weakness, pain, or limitation of motion. From November 28, 2005, to January 25, 2011, the Veteran's right knee disability did not include limitation of flexion to 45 degrees or limitation of extension. The right knee disability produced a limp, limited his endurance for walking, and limited his capacity for stooping or climbing. The pain on motion and diminished endurance produced sufficient functional impairment to warrant a rating of 20 percent instead of 10 percent for his limitation of flexion. The Veteran sometimes reported and sometimes denied buckling and giving way of the knee. Clinicians did not observe subluxation or instability. The Veteran was fitted for right knee braces and he sometimes indicated that he used a cane. Overall, there was not sufficiently consistent evidence of instability to warrant a separate rating under Diagnostic Code 5257. The Veteran's right knee was sometimes noted to have mild effusion, but did not have sufficient cartilage disorder manifestations to warrant a 20 percent rating under Diagnostic Code 5259. The Board grants a 20 percent rating from November 28, 2005, to January 25, 2011 under Diagnostic Code 5260. From March 1, 2011, to May 20, 2013, the Veteran's right knee disability produced functional limitation that included painful motion, limitation of flexion and, with repeated motion, and limitation of extension. Records from treatment visits and examinations did not reflect instability, effusion, or other cartilage disorder symptoms such as would warrant ratings under Diagnostic Codes 5257, 5258, or 5259. For the period from March 1, 2011, to May 20, 2013, the Board continues a 10 percent rating under Diagnostic Code 5260 and grants an additional, separate 10 percent rating under Diagnostic Code 5261. From July 1, 2014, the Veteran's statements and the findings in treatment and examinations have shown disability in the Veteran's replaced right knee more consistent with intermediate degrees of pain and limitation of motion, not reaching or closely approaching severe painful motion or weakness. The Board denies a rating higher than 30 percent from July 1, 2014. REASONS FOR REMAND 1. Service connection for asthma 2. Service connection for bilateral foot fungus 3. Service connection for diabetes mellitus 4. Service connection for brain tumor The Board is remanding the issues of service connection for asthma, foot fungus, diabetes, and brain tumor to complete instructions from the January 2018 Board remand. The Veteran contends that each of those disabilities arises from exposure in service to an herbicide such as Agent Orange. He reports that during his service he was in Vietnam on multiple short, secret missions. (The Board has not conceded that history). He also contends that during service in the continental United States he was exposed to Agent Orange, at Fort Ord in California and Fort Gordon in Georgia. In the January 2018 remand the Board instructed the RO to ask the Veteran for information on his claimed herbicide exposure and to take steps to determine whether herbicides were used as the Veteran claims. Those actions have not been performed. The Court has ruled that the Board has a duty under law to ensure that the RO complies with remand orders of the Board or the Court. See Stegall v. West, 11 Vet. App. 268 (1998). The Board is remanding these issues again for the RO to take these actions. 5. Service connection for a psychiatric disorder, to include PTSD The Board is remanding this issue to complete instructions from the January 2018 Board remand. The Veteran contends that his PTSD or other psychiatric disability is attributable to traumatic experiences in service including being physically attacked by fellow servicemen. In January 2018 the Board remanded the issue for the RO to provide the Veteran notification of the evidence that may be submitted in support of a claim for service connection for PTSD based on personal assault. In a June 2020 letter, the RO provided the Veteran such notification. The Board also instructed that on remand the Veteran be afforded a VA mental disorders examination with opinion as to the likely etiology of each of the Veteran's currently diagnosed mental disorders. An examination has not been provided. The Board is remanding the issue again to the RO to provide an examination. The matters are REMANDED for the following action: 1. The RO is to ask the Veteran to identify the approximate date(s), location(s), and the nature and circumstance(s) of his alleged exposure to herbicide agents in service. 2. Once the Veteran's responses regarding herbicide exposure have been obtained, the AOJ is to undertake exhaustive development to verify whether the Veteran's service placed him in circumstances where he would have been exposed to herbicide agents. Such development includes, but is not limited to, the following: Send a detailed statement of the Veteran's claimed exposure to herbicide agents to the Compensation Service via email at VAVBAWAS/CO/211/AGENT ORANGE, and request a review of the inventory of herbicide operations maintained by the DoD to determine whether herbicides were used or stored as alleged. If the exposure is not verified, then send a request to the JSRRC for verification of exposure to herbicides. Document the actions taken toward the above listed development regarding herbicide exposure. Associate the documentation with the record. 3. Then the RO is to make a formal finding for the record as to whether or not the Veteran served somewhere in service where herbicide agents were used. Advise the Veteran and his representative of the finding. (Continued on the next page) 4. Schedule for the Veteran a VA mental disorders examination to evaluate the current nature and etiology of his psychiatric disorder(s). Provide the Veteran's claims file to the examiner for review in connection with the examination. Ask the examiner to consider the Veteran's statements, including his hearing testimony, as to stressors during his service. Ask the examiner to express opinion, for each current acquired psychiatric diagnosis, whether the disorder at least as likely as not (50 percent or greater probability) began in service or is otherwise related to a disease, injury, or stressor in service, to include claimed in-service personal assault. Ask the examiner, if the Veteran has a current diagnosis of PTSD, to state whether or not a claimed in-service stressor is sufficient to support the diagnosis of PTSD, and to identify which claimed stressor(s). Ask the examiner to provide rationale for each opinion. 5. Then review the expanded claims file and review the remanded claims. If any claim remains denied, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond. Then return the case to the Board for appellate review, if otherwise in order. K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.