Citation Nr: 21076718 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-02 463 DATE: December 27, 2021 ORDER From March 17, 2017, entitlement to a 10 percent, but not higher, rating for right knee degenerative arthritis, is granted, subject to the law and regulations governing the payment of monetary benefits. From March 17, 2017, entitlement to a separate initial evaluation of 20 percent, but not higher, for right knee instability is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a left knee disorder, including patellofemoral pain syndrome, is remanded. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), anxiety, and depression is remanded. FINDINGS OF FACT 1. From March 17, 2017, the Veteran's right knee arthritis is manifested by some limited motion with pain. 2. From March 17, 2017, the right knee had moderate instability. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent, but not higher, for the entirety of the period on appeal, from March 17, 2017, for right knee degenerative arthritis, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5257 2. The criteria for an initial separate evaluation of 20 percent, but not higher, for the entirety of the period on appeal, from March 17, 2017, for right knee instability, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1995 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 and June 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the file has been associated with the record. 1. Entitlement to a compensable rating for right knee degenerative arthritis Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Analysis In June 2017, the RO granted service connection for right knee degenerative arthritis (claimed as strain) with an evaluation of 0 percent effective March 17, 2017. The noncompensable evaluation was based on X-ray evidence of degenerative arthritis without evidence of limited or painful motion. The Veteran filed a Notice of Disagreement in September 2017. She stated that she must take Naproxen (NSAID) daily to relieve pain within her knee, which the VA examiner noted as "no pain during examination." She indicated that the use of Naproxen manages the pain in her knee within toleration, however it does not totally relieve the pain. Service treatment records show complaints of bilateral crepitus and mild pain on ROM in November 1996 and bilateral knee pain in January 1997. Chronic bilateral knee pain was noted, and an MRI was scheduled. In February 1997 service treatment records show right knee still in pain; naproxen helps; pain now for seven months; running/marching makes it worse. A knee brace/sleeve and patella stabilizer were issued bilaterally. Tenderness/mild edema was noted, and joint laxity. MRI results were within normal limits. The Veteran was placed on profile. Possible degenerative joint disease was noted. The Board notes that at a VA examination for her left knee claim in April 2016, the examiner diagnosed patellofemoral pain syndrome with onset during service in 1995 and that the Veteran's right knee hurt worse than her left knee. The Veteran reported a grinding sensation bending her knees. The Veteran was afforded a VA examination for her right knee in April 2017. The examiner noted a diagnosis of degenerative arthritis of the right knee, documented by imaging studies. The examiner noted a right knee strain with onset of symptoms during service in 1996. The Veteran reported that her right knee disorder began during service when her right knee started hurting and swelling. No specific injury was reported. The examiner noted the Veteran's service treatment records show that she presented in December 1996 with crepitus and mild pain in the right knee. X-rays were within normal limits. The Veteran presented in January 1997 with complaints of bilateral knee pain for two weeks. The Veteran presented in February 1997 with complaints of bilateral knee pain for one month, that was worse with running. She stated that, "It has gradually gotten worse." Range of motion was 140 degrees. There was no change in degrees with repetitive motion. The Veteran denied flareups. The examiner noted no pain with motion, no instability or recurrent subluxation, and no ankylosis. Functional impact was noted as no prolonged weight bearing (more than one hour) and limited squatting and kneeling. The examiner noted there is no evidence of pain on passive range of motion testing of the right knee or on non-weight bearing testing of the right knee. The examiner opined that it was at least as likely as not (50 percent or greater probability) that the Veteran's right knee disorder was incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that service treatment records document right knee pain in December 1996, January 1997, and February 1997. The duration of these symptoms is consistent with the current diagnosis of degenerative joint disease of the right knee. At the August 2021 hearing, the Veteran testified that she experiences limitation of motion of her right knee due to arthritis. She stated that she has a hard time going upstairs and her right knee "swells up, then her left knee swells up. I have a hard time." She stated that she experiences instability in gait or walking. She also stated that, "If I keep it bent too long, it stiffens up and hurts to straighten it out." She indicated that she experiences "quite a bit" of pain and takes over the counter medication every day. She stated that her right knee sometimes "locks up and it grinds." She stated it feels like there's something in there. She indicated that she was issued a brace which she uses when her knee swells or gets loose and doesn't pop back; she has to put the brace on to keep functioning. Disabilities of the knee are rated under Diagnostic Code 5256 through Diagnostic Code 5263 of 38 C.F.R. § 4.71a. During the pendency of the appeal, the criteria under Diagnostic Code 5257 were amended, effective February 7, 2021. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes during the course of a claim, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Under the rating criteria in effect prior to February 7, 2021, Diagnostic Code 5257 provided ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee was rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee was rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee was rated 30 percent disabling. 38 C.F.R. § 4.71a. The Board will apply the criteria in effect prior to February 7, 2021 for the applicable Diagnostic Codes as these are criteria are more beneficial to the Veteran than the new version of the regulation. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board finds that from March 17, 2017, the evidence shows that the Veteran is entitled to a separate initial rating of 20 percent for moderate lateral instability. In addition, the Veteran's pain on right knee motion also warrants a 10 percent, but not higher, rating for right knee arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257. A rating higher than 10 percent rating is not warranted for limited motion as this disability has not been manifested by compensable limitation of motion. In other words, there is no uncompensated limitation of motion that can form the basis for an even higher rating based on pain on functional use. 38 C.F.R. §§ 4.40, 4.45. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. Service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. (38 C.F.R. § 3.385). Service connection for bilateral hearing loss and tinnitus was denied in October 2015. The RO found no evidence that the Veteran had a current hearing loss disability for VA purposes. Service treatment records do not contain audiometric findings that meet the criteria. The Veteran's MOS was unit supply specialist, which has a low probability of hazardous noise exposure. In her NOD filed in March 2016, the Veteran indicated that she also served on the firing range and in the base motor pool, areas where exposure to acoustic trauma is extremely high. The Veteran issued weapons and munitions at the firing range. The Veteran conducted inventory and preventative maintenance at the motor pool. At the August 2021 hearing, the Veteran testified that she worked near large trucks during service, and forklifts. She also earned marksmanship qualification badges. She is uncertain when her hearing loss began and might have had some loss of hearing during service but was trying to persevere. The Veteran further testified that she has tinnitus, ringing her ears, but is uncertain when it began. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. The Veteran failed to report for a scheduled examination for hearing loss and tinnitus in October 2017. During the hearing, she stated that she missed a VA examination because she was having a hard time getting out of the house, functioning in society. Coupled with evidence of a mental health disorder and homelessness, the Board finds that the Veteran has shown good cause for not attending the examination and she has expressed her willingness to attend such examination. There is no audiological examination of record to indicate whether or not the Veteran has a hearing loss disability. As such, the Board finds it necessary to remand this issue to obtain a VA examination for the Veteran's bilateral hearing loss claim and tinnitus claim. 3. Entitlement to service connection for a left knee disorder Service connection for a left knee disorder was denied in an October 2015 rating decision. The RO conceded that service treatment records documented complaints of left knee trouble. Service treatment records show complaints of bilateral crepitus and mild pain on ROM in November 1996 and bilateral knee pain in January 1997. Chronic bilateral knee pain was noted, and an MRI was scheduled. In February 1997 service treatment records show right knee still in pain; naproxen helps; pain now for seven months; running/marching makes it worse. A knee brace/sleeve patella stabilizer was provided bilaterally. Tenderness/mild edema was noted, and joint laxity. MRI results were within normal limits. She was placed on profile. Possible degenerative joint disease was noted. The examiner noted that the Veteran failed to appear for a VA examination and that evidence from this examination which might have been material to the outcome of her claim could not be considered. In her NOD filed in March 2016, the Veteran indicated that she missed her VA examination due to being homeless. She indicated that she was willing and able to attend a rescheduled examination for her knee condition. The Veteran was afforded a VA examination in April 2016. The examiner noted patellofemoral pain syndrome with onset during service in 1995. The examiner noted that service treatment records showed complaints that both knees started hurting. No specific trauma was reported. The examiner stated that the condition has worsened. The Veteran experiences intermittent stiffness. Her right knee hurts worse than her left knee. The Veteran reported a grinding sensation when her knees bend. She takes Naproxen twice a day. No imaging was available for review. ROM left knee was 0 to 140 degrees. The examiner indicated that no objective medical evidence was found to support a current diagnosis of a knee disorder. At the Board hearing, the Veteran's representative noted that service treatment records show that she went to sick call in February 1997 complaining of pain in both knees. She was placed on profile, limited duty. She testified that she currently has problems with her left knee and is being treated for it. She went to the emergency room and was given a brace for her left knee because she sprained it. She stated that it is like her knees compensate for each other; when one is doing okay, or hurt, the other one compensates. She indicated that she has an irregular gait; when one knee is hurting it puts pressure on the other knee. She stated that both knees swell up, with the right knee swelling more. She indicated that these symptoms have been consistent and chronic since active service. The Board finds that the April 2017 examination is inadequate as the examiner notes a diagnosis of patellofemoral pain syndrome but also states there is no current diagnosis. The examiner notes there is evidence of in-service onset of pain and that the Veteran reported stiffness and grinding and that her symptoms have worsened. The examiner also notes that the Veteran takes naproxen for pain. The Board therefore finds that the Veteran has a current diagnosis of patellofemoral pain syndrome, and there is documentation of in-service onset of pain in her service treatment records, thereby meeting the first two elements required to establish service connection. However, remand is required for an adequate examination and medical opinion that addresses the nature and etiology of the Veteran's left knee disorder, to include whether it is secondary to her service-connected right knee disorder. 4. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), anxiety and depression The Veteran's claim for PTSD was denied in October 2015. The RO found that review of service treatment and personnel records revealed no "markers" that would indicate that the Veteran experienced sexual trauma while in service. In a March 2016 NOD, the Veteran indicated that she is being treated at a VAMC for posttraumatic stress disorder. She indicated that she has had more treatment since September 2015. Based on the following evidence, the Board finds that a remand is required for a VA mental disorders examination and PTSD examination to determine the nature and etiology of any acquired psychiatric disorder. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A comprehensive psychiatric evaluation was conducted in December 2014. Medical records noted that a PTSD diagnosis is suggested. The Veteran reported experiencing depression for a "long time" and that her symptoms worsened when she ran out of medication. The Veteran reported having nearly daily depression for several months, including loss of interest in activities, sadness, feeling tired, difficulty sleeping, poor concentration and suicidal ideation. She denied current suicidal ideation, intent or plan. She also reported nearly daily anxiety worrying, tingling in her hands, shaking, fear of worst happening, etc. She reported having PTSD symptoms including flashbacks and nightmares related to her military experience. She reported decreased appetite, lacks interest in previously enjoyable activities, and lacks energy and motivation to complete daily tasks. She stated that she is withdrawn from social interactions. She reported having difficulty with memory and concentration and puts off even simple tasks. The Veteran reported experiencing anxiety on a daily basis, especially when in a crowded area. She stated that sometimes she can be paranoid and that she feels "on edge" a lot. She has panic attacks when riding in a car. She reported that occasionally she will awaken from a dream and still see and hear things that were occurring in her dream. She reported losing her job in November 2014. She reported that during active service a staff sergeant sexually harassed her and told her that if she wouldn't be with him he was going to report her for having her daughter with her. In September 2015, the Veteran submitted a Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder (PTSD) Secondary to Personal Assault. She stated that during service her SFC wanted a relationship and sexual favors and she refused. She stated that he went through her file and threated to blackmail her through her child and that to avoid an Article 15 and fraud, she had to show proof of custody of her child. This ongoing activity resulted in the SFC's reassignment and caused the Veteran anxiety and mistrust of others. She also stated that her staff sergeant ordered her to drive an off-road vehicle during early stage pregnancy and she submitted proof of pregnancy and refused, resulting in an Article 15 with bathroom detail. These events caused her anxiety and extreme stress and problems with authority figures. An October 2018 letter from the VA outpatient clinic noted the Veteran was unable to work full time at present as she is suffering from severe depression and is undergoing treatment. At the August 2021 Board hearing, the Veteran testified that she is currently being treated for depression and anxiety. She also indicated that she is agoraphobic and doesn't like being around people. She testified that she experienced harassment on active duty. Specifically, one of her first sergeants liked her and when she rejected him, "he "went into my 4015 and tried to find stuff about my child..." The sergeant was sent somewhere and she stayed in the same unit. She sought help from supervisors. She indicated that she was singled out and given a hard time by supervisors and put in apposition of feeling belittled or personally attacked. She indicated that she was made the brunt of their jokes. She stated this affected her to the point where she doesn't like to be in front of people. She stated that she was given an Article 15 and made to clean the men's bathroom and then they expunged it. After discharge from service, the Veteran stated that she was hospitalized for psychiatric treatment more than five times. She stated that she spent a lot of time talking about how she was treated that may have caused her psychological problems and at the hearing, she "didn't really wish to talk about it." There is medical evidence of a mental health disorder in the record, however, there are no VA examinations for mental disorders or PTSD in the record. The Board therefore remands for appropriate VA examinations and medical opinions. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for hearing loss and tinnitus to determine whether she has a current diagnosis of bilateral hearing loss that meets VA disability standards and/or a diagnosis of tinnitus. If so, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the diagnosed hearing loss and/or tinnitus is due to an event or incident of the Veteran's period of active service. 2. With the Veteran's assistance, the AOJ must attempt to verify the Veteran's stressor for PTSD. All attempts to verify the Veteran's reported stressor must be documented in the claims file. If the stressor is not verifiable, the Veteran must be notified and given an opportunity to respond. 3. Thereafter, the AOJ must schedule the Veteran for a VA examination with a medical professional of appropriate expertise to determine the nature and etiology of any currently diagnosed acquired psychiatric disorder, to include PTSD. The entire claims file, to include a copy of this remand, must be provided to the examiner and reviewed in full. The examiner is asked to provide the following opinions: (a.) Identify all acquired psychiatric disorders diagnosed during the pendency of this appeal, including those that have since resolved. (b.) For each diagnosed acquired psychiatric disorder identified in part (a), the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that such was incurred in service or is otherwise causally related to the Veteran's active service or any incident therein, to include any verified stressor event. 4. The AOJ must schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed left knee disorder. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left knee disorder is related to active service or her service-connected right knee disorder. The examiner must address the Veteran's service treatment records, hearing testimony, and lay statements. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.