Citation Nr: A21018652 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 200406-76026 DATE: November 22, 2021 ORDER Entitlement to an initial 50 percent rating, but no higher, for an acquired psychiatric disorder is granted. Entitlement to an initial compensable rating for right knee condition is denied. Entitlement to an initial compensable rating for left knee condition is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for asthma is remanded. Entitlement to service connection for pes planus is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's acquired psychiatric disorder was characterized, at worse, by occupational and social impairment with reduced reliability 2. For the entire appeal period, the Veteran's right knee condition was not manifested by painful motion or arthritis. 3. For the entire appeal period, the Veteran's left knee condition was not manifested by painful motion or arthritis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 50 percent rating, but no higher, for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9413. 2. The criteria for entitlement to an initial compensable rating for right knee condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5027. 3. The criteria for entitlement to an initial compensable rating for left knee condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5027. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 2001 to October 2002 and August 2008 to March 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by a Department of Veterans Affairs (VA) regional office (RO). The Veteran timely appealed the rating decision by submitting a notice of disagreement (NOD), and the RO issued a statement of the case (SOC) in February 2020. The Veteran again timely appealed the February 2020 SOC by submitting a VA Form 10182 and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ) under the Veterans Appeals Improvement Modernization Act of 2017 (AMA). Under direct review, the Board cannot hold a hearing or accept additional evidence into the record. 38 C.F.R. § 20.301. Therefore, the Board will consider the evidence of record as of the date of the February 10, 2020 SOC/AMA rating decision. Id. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as here, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time, from August 6, 2012, in this case. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. 1. Entitlement to an initial 50 percent rating, but no higher, for an acquired psychiatric disorder is granted. The Veteran's service-connected acquired psychiatric disorder has been rated under Diagnostic Code 9410, which provides that a 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating an acquired psychiatric disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). As an initial matter, the Board notes that the Veteran is currently in receipt of a 30 percent rating for his service-connected acquired psychiatric disorder. He contends that a higher rating is warranted. After thoroughly reviewing the evidence of record and affording the benefit of the doubt to the Veteran, the Board finds that the Veteran's acquired psychiatric disorder more nearly approximates the criteria for a 50 percent rating for the entire period on appeal. A June 2016 psychology progress note reflects that the Veteran reported irritability and explosive angry outbursts, as well as a lack of trust in others. It also shows that the Veteran reported she attempted suicide when she was 17 years old and that she cut her arm in 2008, but she described it as a superficial injury, though both incidents are outside the appeal period. She had adamantly denied suicidal and homicidal ideation, intent, and plan, as well as auditory and visual hallucinations. The Veteran underwent a VA examination in June 2018, in which the Veteran reported that she was not currently in a relationship, lived alone, and did not have children, but she had a good relationship with her mother and sister. She also reported that she has been employed since her separation from service but feels stuck in her job. The Veteran stated that she had not received any mental health treatment since her discharge and had been coping well until she had to speak at the examination. She further stated that that she was arrested for making terroristic threats to her roommate. However, she denied any suicidal or homicidal ideations. The June 2018 examiner noted the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, impaired judgment, anger, irritability, and trouble concentrating, and that the Veteran's psychiatric disorder manifested as 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 behavior, self-care, and conversation. For the entire appeal period, and after resolving all doubt in favor of the Veteran, the Board finds that the Veteran's condition more nearly approximates the criteria for a 50 percent rating. However, the Veteran's symptomatology does not rise to the level contemplated by a 70 percent disability rating during the period. While the Veteran reported anger and irritability, including an arrest for making terroristic threats to her roommate. She has not harmed anyone. Although the Veteran is socially isolated, she has not shown an inability to establish and maintain effective relationships. On the contrary, by the Veteran's reports, she had maintained positive relationships with her family members. The evidence of record demonstrates that the Veteran denied suicidal and homicidal ideations and has been employed. Accordingly, the criteria for a 70 percent rating have not been met. See Vazquez-Claudio, 713 F.3d at 118. The evidence is likewise against a finding of total occupational and social impairment. On review, the Board can find no evidence of record indicating gross impairment of thought processes or communication, persistent delusions or hallucinations, memory loss for names of close relatives, or other symptoms of similar type and degree. Additionally, the Veteran was employed, and though she denied having friends, she still had familial relationships. Thus, she cannot be considered to have been totally impaired with respect to social and occupational functioning. For all the foregoing reasons and affording the Veteran the benefit of the doubt, the Board finds that the evidence shows an overall impairment caused by his acquired psychiatric disorder more nearly approximates 50 percent for the entire appeal period. 38 U.S.C. §5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Accordingly, the claim for an initial 50 percent rating for an acquired psychiatric disorder is granted. 2. Entitlement to an initial compensable rating for right knee condition is denied. 3. Entitlement to an initial compensable rating for left knee condition is denied. The Veteran's bilateral knee conditions are rated non-compensable under Diagnostic Code 5257. She contends that higher ratings are warranted. The Board notes that the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). However, the changes to the rating criteria occurred after the February 2020 SOC, and the closing of the record. As such, the Board will not consider the new regulations. Under Diagnostic Code 5257 for other impairments of the knee, a 10 percent rating applies if there is slight recurrent subluxation or lateral instability. A 20 percent rating applies if there is moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A 30 percent rating applies if there is severe recurrent subluxation or lateral instability. Id. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, considering any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). Turning to the evidence of record, the Veteran appeared for a VA examination in May 2018, in which the Veteran did not report flare-ups or functional loss/impairment. The examiner noted that the Veteran had normal range of motion (ROM) for her bilateral knees without any pain and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. She further noted the Veteran had no pain with passive ROM, weight-bearing, or non-weight bearing, as well as no ankylosis, joint instability, or effusion. May 2018 imaging studies performed indicated no degenerative or traumatic arthritis. The Board notes that records were also received from the VA medical center. However, there was no evidence of any additional range of motion testing nor descriptions of functional limitations as related to the Veteran's bilateral knee conditions. The Board finds that a compensable rating is not warranted based on Diagnostic Code 5257 as the Veteran did not have pain, recurrent subluxation, instability, or recurrent effusion. All possibly applicable diagnostic codes have also been considered, but the evidence indicates that the Veteran cannot receive a higher disability rating for her bilateral knee conditions under such diagnostic codes at any time during the appeal period. See 38 C.F.R. § 4.71a. The May 2018 VA examination showed that the Veteran's bilateral knees had normal range of motion, with no evidence of pain, flare-ups, or arthritis. Furthermore, there was no finding of additional functional loss due to pain, weakness, weakened movement, premature or excess fatigability or incoordination such to warrant a compensable rating pursuant to §§ 4.40 or 4.59. There was also no evidence of ankylosis, impairment of the cartilage, impairment of the tibia or fibula, or evidence of genu recurvatum per treatment records and examination reports. As such, the Veteran's bilateral knee conditions do not warrant a compensable rating during the entire appeal period. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Upon review of the record, the Board finds that the claims must be remanded to allow the AOJ to correct duty to assist errors that occurred prior to the issuance of the February 2020 SOC. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. 4. Entitlement to an initial rating in excess of 10 percent for asthma is remanded. The Veteran contends that she is entitled to a higher rating for her service-connected asthma. The Veteran underwent a VA examination in May 2018, in which the examiner noted that the Veteran did not require the use of oral or parenteral corticosteroid mediation and that the Veteran had intermittent use of inhalational bronchodilator therapy. However, the Veteran provided that she was prescribed medication to be used daily. See January 2019 NOD. Given that the AOJ found the May 2018 opinion adequate, and this was prior to the decision on the claim, the Board finds that this is a pre-decisional duty to assist error warranting remand under the AMA and implementing regulations. 38 C.F.R. § 20.802(a). Accordingly, remand for new a VA examination to ascertain the severity of the Veteran's asthma is warranted. 5. Entitlement to service connection for pes planus is remanded. The Veteran contends that her pes planus was aggravated by her service. The Veteran's August 2008 enlistment report of medical examination shows that the Veteran was noted as having moderate asymptomatic pes planus. In May 2018, the Veteran was afforded a VA examination. The examiner opined that the Veteran's pes planus was less likely than not related to service because the Veteran's August 2008 enlistment examination reflected that the Veteran had congenital pes planus indicative of pre-existing birth defect. However, the examiner did not address in-service aggravation of the Veteran's preexisting pes planus. 38 C.F.R. § 3.306. Therefore, the Board finds that a new examination is warranted for the Veteran's claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current nature and severity of her service-connected asthma, including any medication. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's asthma under the rating criteria, noting the frequency and severity of asthma attacks. To the extent possible, the examiner should identify any symptoms and functional impairments due to asthma alone and discuss the effect of the Veteran's asthma on any occupational functioning and activities of daily living. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of her bilateral pes planus. The claims file should be made available to the examiner for review in connection with the examination. The examiner should address the following: (a) Was there any increase in the Veteran's preexisting pes planus during any period of active service? (b) If so, is there clear and unmistakable evidence that such increase was due to its natural progress? The examiner should identify the facts and medical principles on which the opinion is based. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be considered in formulating the requested opinions. (Continued on the next page) The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.