Citation Nr: 21064815 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-34 144 DATE: October 21, 2021 ORDER An initial disability rating greater than 30 percent for posttraumatic stress disorder (PTSD) is denied prior to March 20, 2018. Effective March 20, 2018, a disability rating of 70 percent, and no higher, for PTSD is granted. A disability rating greater than 10 percent for right knee degenerative joint disease (DJD) is denied. An initial disability rating greater than 10 percent for right knee instability is denied. Service connection for a heart disability is granted. FINDINGS OF FACT 1. Prior to March 20, 2018, the Veteran's PTSD was manifested by no more than some occupational and social impairment with reduced reliability and productivity due to such symptoms as anxiety as well as chronic sleep impairment. 2. Beginning March 20, 2018, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in areas such as work, thinking and mood due to such symptoms as: suspiciousness; chronic sleep impairment; circumstantial, circumlocutory or stereotyped speech; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work or a work like setting. There have not been more severe manifestations that more nearly approximate total occupational and social impairment. 3. Pertinent to the appeal period, the Veteran's right knee DJD disability has manifested by flexion of no less than 45 degrees and normal extension (to 0 degrees); while there are reports of pain and swelling, there has been no ankylosis, recurrent effusion, diagnosed meniscal condition, tibia or fibula impairment, total knee replacement, or evidence of greater impairment. 4. Since the grant of service connection, the Veteran's right knee instability has manifested by no worse than slight lateral instability without evidence of greater impairment. 5. The Veteran served in the Republic of Vietnam during the Vietnam era and, in affording him the benefit of the doubt, has a current diagnosis of ischemic heart disease. CONCLUSIONS OF LAW 1. Prior to March 20, 2018, the criteria for an initial disability rating greater than 30 percent for PTSD were not met. 38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, and 4.130, Diagnostic Code (DC) 9411. 2. Beginning March 20, 2018, the criteria for a 70 percent disability rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, and 4.130, DC 9411. 3. The criteria for a disability rating greater than 10 percent for right knee DJD have not been met. 38 U.S.C. § 1155, 5107 (b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. 4. The criteria for an initial disability rating greater than 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 5. The criteria for service connection for a heart disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from January 1959 to May 1979. Significantly, the Veteran's service personnel records show that he served in Vietnam from March 1969 to March 1970. These issues come before the Board of Veterans' Appeals (Board) on appeal from January 2017 and August 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Specifically, the January 2017 rating decision granted service connection for anxiety disorder, assigning a 30 percent rating effective October 18, 2010. The August 2018 rating decision, in part, recharacterized the Veteran's service-connected psychiatric disability from anxiety disorder to PTSD and increased the Veteran's disability rating from 30 to 50 percent disabling effective March 20, 2018, continued a 10 percent disability rating for the Veteran's right knee DJD, granted a separate 10 percent disability rating for right knee instability effective February 28, 2018, and denied service connection for a heart disability. The Veteran disagreed with these decisions and perfected this appeal. In July 2020, the Board, in part, continued a 50 percent disability rating for PTSD, continued a 10 percent disability rating for right knee DJD, continued an initial 10 percent disability rating for right knee instability, and denied service connection for a heart disability. The Veteran appealed the Board's July 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Veteran and VA's Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion), in which both parties to the Joint Motion requested that the Court vacate and remand the Board's July 2020 decision with respect to the issues concerning PTSD, right knee DJD, right knee instability, and a heart disability. Notably, the May 2021 Joint Motion did not disturb the July 2020 Board decision to continue a 10 percent disability rating for the Veteran's service-connected bilateral hearing loss. The Veteran has also perfected an appeal concerning the issue of entitlement to service connection for bladder cancer which was remanded by the Board for additional development in March 2020 and is currently in remand status. As such, the Board will not address this issue at this time. However, the Board requests that the RO consider this claim expeditiously given the fact that the Veteran served in the Republic of Vietnam during the Vietnam Era and that the National Defense Authorization Act for Fiscal Year 2021 recently amended 38 U.S.C. § 1116 (a)(2) to include bladder cancer to the list of diseases presumptively associated with exposure to herbicide agents. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD The Veteran contends that his psychiatric symptoms are more severe than the rating currently assigned. By way of history, the Veteran submitted an initial claim for service connection for PTSD in October 2010. While this claim was originally denied in August and November 2012 rating decisions, the Veteran perfected an appeal of these denials and, by rating decision dated in January 2017, the RO granted service connection for anxiety disorder, assigning a 30 percent rating effective October 18, 2010. The Veteran timely disagreed with the rating assigned in this decision in February 2017 but he was never issued a statement of the case (SOC). Thereafter, in March 2018, the Veteran submitted a claim for an increased rating for his service-connected anxiety disorder and, by rating decision dated in August 2018, the RO recharacterized the Veteran's service-connected psychiatric disability from anxiety disorder to PTSD and increased the Veteran's disability rating from 30 to 50 percent disabling effective March 20, 2018. As the Veteran's claim for a higher rating for his service-connected psychiatric disability has been pending since October 2010, the Board will consider whether a higher rating is warranted during the entire appeal period, specifically whether an initial disability rating greater than 30 percent is warranted prior to March 20, 2018 and whether a disability rating greater than 50 percent is warranted beginning March 20, 2018 pursuant to AB v. Brown, 6 Vet. App. 35 (1993) (a claim for increased rating remains in controversy when less than the maximum available benefit is awarded). The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, DC 9411. A 50 percent evaluation is warranted where there is 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent evaluation requires 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; and, memory loss for names of close relatives, own occupation, or own name. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). Evidence relevant to the level of severity of the Veteran's PTSD since the grant of service connection includes private psychiatric examination reports dated in February and March 2018 as well as VA psychiatric examinations dated in April 2018 and July 2019. Also of record are private and VA treatment records dated through June 2021. A February 2015 VA treatment record shows anxiety symptoms associated with PTSD secondary to his past combat experiences and described experiencing difficulties after returning from Vietnam. He reported that his anxiety symptoms included: anger outbursts, flashbacks, social estrangement, low frustration tolerance, avoidant behaviors, panic, hypervigilance, feeling on edge, sleep disturbances (e.g., insomnia, nightmares, night sweats), and poor concentration. He also reported that his symptoms have been exacerbated since he began being the point of contact for a social organization for Veterans "who need to talk about Vietnam." He reported that his anxiety symptoms have negatively impacted his functionality. He also endorsed mild-moderately depression, including depressed mood, anhedonia, insomnia, fatigue, feeling bad about himself, poor concentration, isolative behaviors, and restlessness/fidgety. He denied experiencing generalized or social anxiety, mania symptoms, psychosis, acute distress, suicidal ideation, or homicidal ideation. He reported increased caffeine and tobacco use, but denied excessive alcohol use. He also denied any past or current illicit drug use. He reported having support from his wife of 54 years, his son, and "a couple of friends." He also reported having a history of physical and verbal altercations with others, but denied having any current or past legal problems. Depression and PTSD screening test results were found to be positive, suggestive of moderate depression and PTSD. He was diagnosed with unspecified anxiety disorder, unspecified depressive disorder, tobacco use disorder, and high caffeine intake. On mental status examination, the Veteran appeared on time for his appointment and was casually dressed with intact hygiene. He was found to be oriented to time, place, person, and situation, with no evidence of hallucinations or thought disorder. Speech was found to be coherent, fluent, and goal-directed. Eye contact was found to be appropriate. Mood was described as moderately agitated at the beginning of the appointment and mildly anxious and calm by the end. Affect was found to be constricted. The Veteran was found to be cooperative with appropriate participation. He denied suicidal or homicidal ideation. A March 2015 VA treatment record shows sleep difficulties, hypervigilance at night, anger problems, and flashbacks. He reported his mood as poor, antsy, sad, reflecting on things from the military. The examiner made the following notation: "He states that he has felt depressed off and on since [Vietnam]. Veteran states that sometimes he has thoughts that some of his family would be better off if he was dead and sometimes he thinks 'what the hell am I still doing here' and then he remembers his wife needs him. He states that he was a nice country boy before [Vietnam] but he gotten to the point that he can't take any bull shit." He denied anhedonia and rates his self-esteem as average. He also denied feelings of guilt, or being punished but "adds that he feels responsible for the death of 500-600 [Viet Cong] and maybe God is kicking his butt." On mental status examination, the Veteran was found to have good grooming, appropriate attire, and appeared his stated age. He maintained eye contact and his position and posture were found to be unremarkable. Speech was found to be normal in fluency, rate, volume, and prosody. He was observed to be cooperative during the examination. No psychomotor agitation/retardation, involuntary/automatic movements, tics, mannerisms, or compulsions were observed. Mood was described as "hypervigilant" with a mild dysphoric and full affect. Reactivity was found to be within normal limits. The Veteran denied suicidal or homicidal ideation. Thought process was found to be congruent and goal directed. Thought content was found to be within normal limits. No hallucinations, delusions, or illusions were observed or endorsed. The Veteran was found to be alert and oriented to time, place, and person. Concentration and memory were found to be grossly intact. Insight and judgment were found to be adequate for self-management. A subsequent March 2015 VA treatment record noted the Veteran's avoidance of crowds and that "he tends to get in the middle of other people problems to try to help them. He also endorsed feeling better based on his work with other veterans. Mental status examination shows that the Veteran had good grooming, appropriate attire, and appeared his stated age. He maintained eye contact and his position and posture were found to be unremarkable. Speech was found to be normal in fluency, rate, volume, and prosody. He was observed to be cooperative during the examination. No psychomotor agitation/retardation, involuntary/automatic movements, tics, mannerisms, or compulsions were observed. Mood was described as "apprehensive" with a mild-moderate dysphoric and restricted affect. Reactivity was found to be within normal limits. The Veteran denied suicidal or homicidal ideation. Thought process was found to be congruent and goal directed. Thought content was found to be within normal limits. No hallucinations, delusions, or illusions were observed or endorsed. The Veteran was found to be alert and oriented to time, place, and person. On VA examination in August 2016, the Veteran was diagnosed with anxiety disorder. He reported being married for 55 years, describing the relationship as "great." He also reported having very close relationships with his two children and two grandchildren. He denied any history of suicide attempts. He endorsed one post-service episode of physical violence in 1988-89 at a golf course, but denied any subsequent episodes. He also reported that the last time he had a psychological evaluation done was at the Gainesville, FL VA medical center in March 2015. He endorsed excessive alcohol use in service, but denied any substance abuse issues post-service. He also endorsed tobacco use since age 13, smoking one pack per day. He also reported recurrent and distressing recollection of his Vietnam service daily, with recurrent dreams up to four times a week. He also reported having difficulty falling or staying asleep, irritability or anger outbursts, hypervigilance, and an exaggerated startle response. The examiner noted that the Veteran's anxiety disorder resulted in anxiety as well as chronic sleep impairment and found that the Veteran's psychiatric symptomology led to occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or; symptoms controlled by medication. No mental status examination was conducted. A February 2018 private assessment noted that the Veteran experiencing anxiety, insomnia, sleep deprivation, isolation, memory loss, hypervigilance, depression, and agoraphobia. The examiner also noted no evidence of violent ideations. A March 2018 VA treatment record noted the Veteran's good judgment and insight, with appropriate mood and affect. A suicidal risk assessment was also found to be negative. A March 2018 private psychiatric examination report shows diagnoses of PTSD with dissociative symptoms and other specified depressive disorder. The examiner found that it was not possible to differentiate the Veteran's psychiatric symptoms that are attributable to each diagnosis. The examiner noted that she based her findings and opinion on a review of the Veteran's DD-214, the pertinent VA rating decisions, and a clinical interview. The examiner noted an endorsement of being involved in physical altercations and being in a "fistfight every two or three months" during his adolescence because "he defended people." He also endorsed being withdrawn, self-isolated and being" mouthy" that only involved "abusive words" after his return from Vietnam. The examiner noted the "excellent marital relationship" of 54 years with two children and grandchildren. The Veteran did not report any problems in relationships with his children or grandchildren. He reported being self-employed as a photographer after his military service and began volunteering to assist in locating servicemembers whom he served with in Vietnam. He endorsed having contact with four mental health practitioners within the VA system, noting that he was referred into group therapy and psychiatric treatment, but declined to do so. He also reported coming "close" to involving himself in physical altercations, "although he typically informs individuals of what he desires to do, after which 'They back off.'" He reported increased alcohol use during service, but denied increased or excessive alcohol use after service. The following symptoms were observed by the examiner: suspiciousness; chronic sleep impairment; circumstantial, circumlocutory or stereotyped speech; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work or a work like setting. Significantly, the examiner found that the psychiatric symptomology led to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. On mental status examination, the Veteran was found to be easily engaged in the current evaluation. Impulse control was found to fall below normal limits. Speech was found to be normal in manner and content. Form of thought was remarkable for circumstantiality. Thought content was found to be within normal limits. There was no objective evidence of suicidal ideation, homicidal ideation, and perceptual abnormalities observed by the examiner. Mood was described as "about normal" with a somewhat labile and intense affect. The Veteran was found to be alert and oriented to time, place, person, and situation. On VA psychiatric examination in April 2018, the examiner diagnosed the Veteran with PTSD. The Veteran reported being exposed to hundreds of near death experiences while serving in Vietnam. He endorsed avoidance behaviors, such as grilling when he returned home (due to the triggering effect of the smell) and avoiding other veterans. He also endorsed nightmares, social withdrawal, hypervigilance, feelings of detachment, insomnia, exaggerate startle response, irritability and avoidance of reminders. He denied receiving psychotherapy or psychiatric medication treatment to address his symptoms. He also denied past or present suicidal or homicidal ideation. He further denied any history of legal issues, violent behavior, or substance abuse either during or after his military service. The following symptoms were observed by the examiner: anxiety; suspiciousness; chronic sleep impairment. The examiner found the psychiatric symptomology led to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine, self-care and conversation. On mental status examination, it was noted that the Veteran arrived on time for his appointment. He was found to be oriented to person, place, time, and situation. Mood was observed to be euthymic with tearfulness talking about key traumatic events. Affect was described as flattened. No abnormal motor movements were observed. Speech was found to be normal in rate, tone, and volume. Thought processes were found to be logical and goal-directed. He was observed to have a worn appearance, casual dress, and good personal hygiene. A January 2019 VA treatment record noted that depression and PTSD screening test results were found to be negative. A March 2019 private treatment record noted the Veteran denying any feelings of depression. On VA psychiatric examination in July 2019, the examiner continued a diagnosis of PTSD. The Veteran reported having a "great childhood," being married for 58 years, and having two children. He did not report any marital or familial relationship issues or problems. He denied any history of heavy alcohol use or illicit drug use since service. The following symptoms were observed by the examiner: anxiety; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. The examiner found the psychiatric symptomology led to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine, self-care and conversation. On mental status examination, it was noted that the Veteran arrived on early for his appointment. He was observed to be neatly dressed and groomed. He maintained good eye contact. He was found to be oriented to time, place, person, and situation. Thoughts were found to be organized and coherent. The Veteran denied hallucination, delusions, suicide ideation, or homicidal ideation. Mood appeared to be euthymic with a congruent affect. He endorsed sleep difficulties due to nightmares, hypervigilance, exaggerated startle response, flashbacks, and social avoidance. As above, this appeal stems from an October 2010 claim for service connection for PTSD and the Veteran is currently in receipt of a 30 percent disability rating prior to March 20, 2018 and a 50 percent disability thereafter for his PTSD. As such, the Board will consider these periods of time separately. 1. Prior March 20, 2018, an initial disability rating greater than 30 percent for PTSD were not met. As for the period of time prior to March 20, 2018, the Board finds that an initial disability rating greater than 30 percent for PTSD is not warranted. Significantly, prior to March 20, 2018, the Veteran's PTSD did not meet the criteria for the next-higher, 50 percent, evaluation. As noted above, a 50 percent rating contemplates occupational and social impairment with reduced reliability and productivity due to certain symptoms; however, the Board finds that those delineated symptoms were not significant characteristics of the Veteran's disability prior to March 20, 2018, and the symptoms he did have were not of similar frequency or severity as those contemplated by the higher rating. Significantly, the August 2016 VA examiner specifically found that the only symptoms exhibited by the Veteran in connection with his psychiatric disability were anxiety and chronic sleep impairment, which were consistently noted to be mild and/or transient. In this respect, prior to March 20, 2018 the Veteran was not found to have such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; or difficulty in understanding complex commands. The Veteran was also not shown to have any impaired judgment or impaired abstract thinking, or any other symptom on par with the level of severity contemplated by the higher rating categories. While the Veteran did have some social impairment, such is contemplated by the 30 percent award. The Board also finds that no higher evaluation can be assigned pursuant to any other potentially applicable diagnostic code. Because there are specific diagnostic codes to evaluate PTSD, consideration of other diagnostic codes for evaluating the disability does not appear appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability). See Butts v. Brown, 5 Vet. App. 532 (1993). As such, the Board finds that prior to March 20, 2018, an initial disability rating greater than 30 percent is not warranted. 38 C.F.R. § 4.3. 2. Beginning March 20, 2018, a disability rating of 70 percent, and no higher, for PTSD were met. As for the period of time beginning March 20, 2018, the Board finds that a disability rating of 70 percent, and no higher, is warranted for the Veteran's PTSD. As above, the March 2018 private psychiatric examination report shows that the Veteran's PTSD resulted in suspiciousness; chronic sleep impairment; circumstantial, circumlocutory or stereotyped speech; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work or a work like setting. Significantly, the examiner found that the psychiatric symptomology led to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. This supports a 70 percent disability rating. While the subsequent July 2019 VA psychiatric examination shows symptoms/overall functioning equivalent to a 30 percent disability rating, this examination report does not address the more significant findings noted in the March 2018 private psychiatric examination report. As such, resolving doubt in favor of the Veteran, the Board finds that, beginning March 20, 2018, the criteria for a 70 percent disability rating have been met. As for the potential for a disability rating higher than 70 percent, the Board finds that the evidence does not show the symptomatology required for a 100 percent rating. The Board has looked at all the factors and evidence identified above to determine whether the Veteran has met or more closely approximated the criteria for a maximum 100 percent rating. However, when considering the overall evaluation of the examples which may support the 100 percent rating, the frequency, duration and severity of symptoms, the Veteran's capacity for adjustment, and the examiner's assessments of the Veteran's overall psychological, social and occupational functioning, the Board must conclude that the Veteran's psychiatric disability has not met or more closely approximated the criteria for a 100 percent rating at any relevant time. In this respect, the Veteran, even at his worst, can efficiently converse with the VA examiner, and can generally manage his daily activities on his own. He is not psychotic or out of touch with reality. Overall, his psychiatric disorder is not shown to manifest the type, extent and severity of symptoms demonstrating "total occupational and social impairment" within the meaning of the rating schedule at any point pertinent to this appeal. As such, a disability rating of 70 percent, and no higher, is warranted. Right Knee The Veteran contends that his right knee symptoms are more severe than the ratings currently assigned. By way of history, the Veteran submitted an initial claim for service connection for a right knee disability in September 2010 and, by rating decision dated in August 2012, the RO granted service connection for right knee DJD, assigning a 10 percent disability rating effective September 21, 2010. The Veteran did not appeal this determination. He then submitted the current claim for an increased rating in March 2018. The August 2018 rating decision on appeal continued the 10 percent rating for his right knee DJD and awarded service connection for right knee instability, assigning a separate 10 percent rating effective February 28, 2018. The Veteran disagreed with this decision and perfected this appeal. The Veteran's right knee disabilities are currently rated under 38 C.F.R. § 4.71a, DC 5260 (pertaining to limitation of flexion) and DC 5257 (pertaining to instability). Effective February 7, 2021, several changes to the diagnostic codes used for rating musculoskeletal disabilities were made. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. While the Veteran has not yet been notified of all applicable regulatory changes and considered his claim under such regulations, the Board notes that the rating criteria prior to February 7, 2021 pertaining to the knees are significantly more favorable to the Veteran. As such, there is no prejudice to the Veteran in the Board considering the claims at this time. Pursuant to DC 5260, a noncompensable rating is warranted when there is limitation of flexion of a leg to 60 degrees. A 10 percent disability rating is warranted if flexion is limited to 45 degrees. A 20 percent disability rating is warranted if flexion is limited to 30 degrees. A 30 percent disability rating is warranted if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Also, pursuant to DC 5261, a noncompensable rating is warranted when there is limitation of extension of a leg to 5 degrees. A 10 percent disability rating is warranted if extension is limited to 10 degrees. A 20 percent disability rating is warranted if extension is limited to 15 degrees. A 30 percent disability rating is warranted if extension is limited to 20 degrees. A 40 percent disability rating is warranted if extension is limited to 30 degrees. A 50 percent disability rating is warranted if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Where a claimant has both limitation of flexion and limitation of extension of the same leg, he must be rated separately under DC's 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (September 17, 2004). Under certain circumstances, a separate disability evaluation may be assigned for arthritis of the knee under DC 5003 in addition to the rating for instability under DC 5257. VAOPGCPREC 9-98 and VAOPGCPREC 23-97. A number of other diagnostic codes also potentially apply to knee ratings. Under DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees. Under DC 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. Under DC 5258, dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, is rated as 20 percent disabling. Under DC 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Under DC 5262, a malunion of the tibia and fibula of either lower extremity warrants a 20 percent evaluation if there is a marked knee or ankle disability. Also relevant is DC 5003, which pertains to degenerative or traumatic arthritis established by x-ray findings. Such 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 DC 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, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a , DC 5003. Notably, beginning February 7, 2021, DC 5003 pertains to degenerative arthritis, other than post-traumatic. Also, beginning February 7, 2021 DC 5257 clarifies the meaning of slight, moderate, and severe instability and requires that the condition be diagnosed based on objective medical findings. 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Also, the Court has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Evidence relevant to the level of severity of the Veteran's right knee disability pertinent to the appeal period includes a private examination report dated in February 2018 as well as VA knee examinations dated in April 2018 and July 2019. Also of record are private and VA treatment records dated through June 2021. The February 2018 private assessment shows constant right knee pain that was intensified with sitting, walking, standing, stairs, transition to other positions, and arising from a seated position. The examiner also the Veteran's reports of right knee clicking, popping, and giving out "at unpredictable random [sic]" causing him to stumble and fall. Clinical examination revealed flexion up to 45 degrees with pain as well as "adequate" extension. Lateral instability of the right knee and joint crepitus was noted by the examiner. No additional measurements or findings were made. The April 2018 VA knee examination report shows a diagnosis of degenerative arthritis, right knee. The examiner noted the Veteran's in-service knee injury in 1960 that was aggravated by combat jump. He also noted ongoing pain complaints when "he forgets to favor knees, back, and right hip during activities." The Veteran endorsed flare ups of intermittent sharp pain episodes and additional functional impairment of decreased capacity based on prolonged standing, walking, and physical training. On range of motion (ROM) testing of the right knee, the Veteran had flexion to 95 degrees and extension to 0 degrees. Pain was noted on examination that caused functional loss on flexion and extension. There was no evidence of tenderness or pain on palpation as well as pain on non-weight bearing was found. There was objective evidence of crepitus found on examination. He was able to perform repetitive-use testing with three repetitions. Following repetition, his right knee ROM showed no additional limitation of flexion or extension. The examiner was unable to render an opinion on additional loss of ROM due to repeated use or flare ups without restoring to speculation. The examiner noted that the examination was not performed immediately after repeated use or a flare up. The examiner found no additional factional contributing to the Veteran's right knee disabilities. Muscle strength revealed a score of 5/5 for knee flexion and 5/5 for extension. There was no evidence of muscle atrophy or ankylosis. Joint stability tests were normal. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. There was also no evidence or history of recurrent patellar subluxation/dislocation. The Veteran did not currently have nor had he ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There were no meniscal conditions or surgical procedures for a meniscal condition. There was no total knee joint replacement and/or arthroscopic or other knee surgery as well as no residual signs and/or symptoms due to knee surgery. The examiner also noted that there were no associated scars or use of an assistive device in order to ambulate. The July 2019 VA knee examination shows a diagnosis of right knee degenerative joint disease and lateral instability. At that time, the Veteran reported experiencing knee pain, swelling, and lateral instability. There was no history of surgery, steroid injections, or knee drainage. The Veteran endorsed flare ups of increased pain that limited the use of his leg. In addition, he endorsed additional functional loss with kneeling, standing, walking, and climbing. On ROM testing for the right knee, he had flexion to 100 degrees and extension to 0 degrees, with pain noted on flexion and extension that resulted in functional loss. There was objective evidence of pain on weight bearing and evidence of crepitus. He was able to perform repetitive-use testing with three repetitions. Following repetition, his right knee ROM showed limitation of flexion to 90 degrees and extension to 0 degrees. There was also additional range of motion limitation of flexion to 70 degrees due to pain resulting from repetitive use testing and pain resulting from flare ups. The examiner did not find additional functional loss of the right knee. Muscle strength revealed a score of 4/5 for knee flexion and 4/5 for extension. However, there was no evidence of muscle atrophy. Joint stability tests were normal. There was no evidence of recurrent subluxation, lateral instability, or recurrent effusion. There was also no evidence or history of ankylosis, recurrent patellar subluxation/dislocation, or effusion. The Veteran did not currently have nor had he ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There were no meniscal conditions or surgical procedures for a meniscal condition. There was no indication of total knee joint replacement, arthroscopic, and/or other knee surgery as well as no residual signs and/or symptoms due to knee surgery. The examiner also noted that there were no associated scars and occasional use of a knee brace. There was objective evidence of pain on passive range of motion testing and non-weight bearing testing, however ROM was the same as active ROM. The examiner noted the Veteran's reports of pain at 120 degrees flexion based on active and passive range of motion testing. The examiner also noted functional loss with kneeling, standing, walking, and climbing and that the Veteran would be limited with any occupational tasks requiring such actions. With regard to Correia, the examiner noted that there was objective evidence of pain when the right knee was used in non-weight bearing. The examiner also noted that the Veteran's passive range of motion was the same as the active range of motion findings noted above. Also of record are VA and private treatment records dated through June 2021 which note complaints of right knee pain but do not contain any range of motion findings. 3. A disability rating greater than 10 percent for right knee degenerative joint disease is denied. With regard to the Veteran's 10 percent disability rating for loss of motion of the right knee under DC 5260, the Board finds that a disability rating greater than 10 percent is not warranted. Significantly, the Veteran had right knee flexion to 45 degrees in February 2018, flexion to 95 degrees during the April 2018 VA examination, and flexion to 100 degrees (70 degrees with flare-ups) during the July 2019 VA examination. Pursuant to DC 5260, a higher, 20 percent evaluation is only warranted if flexion is limited to 30 degrees or less. As such, a disability rating greater than 10 percent is not warranted for the Veteran's loss of right knee flexion pursuant to DC 5260. Furthermore, a separate compensable rating is not warranted under DC 5261 as the Veteran had full extension of the right knee to 0 degrees during both of his April 2018 and July 2019 VA knee examinations as well as "adequate" extension in February 2018. With regard to the potential for higher ratings for of the right knee based on additional loss of motion due to flare-ups of the knee pursuant to Sharp, while the Veteran reported experiencing flare-ups of the right knee during both the April 2018 as well as the July 2019 VA examinations, the April 2018 VA examiner was unable to describe this in terms of ROM and the July 2019 VA examiner specially found that flare-ups only limit the Veteran's right knee flexion to 70 degrees. As such, there is no indication of additional loss of motion during flare-ups and/or repeated use such would warrant a higher rating for the Veteran's right knee loss of motion. 4. An initial disability rating greater than 10 percent for right knee instability is denied. With regard to the Veteran's separate 10 percent disability rating for instability of the right knee under DC 5257, the Board also finds that a disability rating greater than 10 percent is not warranted. Significantly, the evidence of record does not indicate worsening symptoms that would proximate moderate severity. As above, the February 2018 private assessment shows some lateral instability of the right knee, the April 2018 VA examination is negative for instability, and the July 2019 VA examination shows lateral instability of 1+ (0-5 millimeters). Of note, the July 2019 VA examination report categorizes stability in terms of 1+ (0-5 millimeters), 2+ (5-10 millimeters), as well as 3+ (10-15 millimeters). As such, when applying these three categories to DC 5257, it appears that the Veteran's right knee instability has been appropriately characterized as mild. The Board also finds that a separate or higher rating is not warranted based upon DC 5003 as the current ratings under DC 5260 contemplate limitation of motion. Moreover, there is no evidence of ankylosis, dislocated semilunar cartilage, a meniscal condition, impairment of the tibia or fibula, or genu recurvatum, DCs 5256, 5258, 5259, 5262, and 5263 are not for application. Significantly, both the April 2018 as well as the July 2019 VA examination reports are negative for such findings. The Board accepts that the Veteran has functional impairment, pain, and pain on motion (see DeLuca) and finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for higher ratings. The more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned 10 percent ratings are warranted and no more. As the preponderance of the evidence is against disability ratings greater than 10 percent for the right knee disabilities, the claims are denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307 (a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 U.S.C. § 1116 (a)(2) and 38 C.F.R. § 3.309 (e), to include ischemic heart disease. 5. Service connection for a heart disability is granted. The Veteran reports that he has a current heart disorder that is the result of herbicide exposure during his active service in Vietnam. In connection with this claim, the Veteran submitted a February 2018 private assessment, which found that he had a history of "what appears to be cardiomyopathy complicated by ischemic disease" that is the direct result of herbicide exposure. The Veteran was afforded a VA heart examination in April 2018. Significantly, the examiner found no evidence of a current heart diagnosis. The examiner also opined that the Veteran's claimed heart disability is less likely than not related to his military service. As rationale for this opinion, the examiner noted that the Veteran was on no cardiac medications and reported no cardiac symptoms. As noted above, the Board previously denied service connection for a heart disability in a July 2020. Significantly, the Board weighed the findings of the February 2018 private examiner with the findings of the April 2018 VA heart examiner and concluded that there was no current heart disability. The May 2021 Joint Motion found that the July 2020 Board decision failed to address whether VA and private treatment records, in conjunction with the February 2018 private examiners findings of ischemic heart disease, reflected a current heart disability. A review of VA and private treatment records dated through June 2021 are generally negative for a diagnosed heart disability. However, a September 2000 private treatment record shows moderate probability of mild ischemia. Furthermore, it appears that the Veteran is evaluated for heart related complaints fairly regularly. As such, it appears that the Veteran likely has a heart disability which does not require medication and results in limited cardiac symptoms. As previously noted, the Veteran served in the Republic of Vietnam during the Vietnam Era. As such, he is presumed to have been exposed to herbicide agents during such service. Furthermore, as above, it appears that the Veteran likely has a very mild heart disability, diagnosed as ischemic heart disease. As such, affording the Veteran the benefit of the doubt, service connection for a heart disability is warranted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.