Citation Nr: 21006444 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-14 659 DATE: February 4, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and unspecified bipolar disorder is denied. An increased rating higher than 10 percent from August 13, 2010 to February 23, 2015 and April 1, 2015 and continuing thereafter for a right knee disorder, to include degenerative joint disease and meniscal tear is denied. An increased rating higher than 10 percent from August 13, 2010 to February 23, 2015 and April 1, 2015 and continuing thereafter for left knee degenerative joint disease is denied. A separate 10 percent rating from August 13, 2010 to February 23, 2015 and April 1, 2015 and continuing thereafter for right knee instability is granted. A separate 10 percent rating from August 13, 2010 to February 23, 2015 and April 1, 2015 and continuing thereafter for left knee instability is granted. REMANDED The issue of a total disability rating based on individual unemployability (TDIU) due to service-connected disorders is remanded. FINDINGS OF FACT 1. The Veteran is not credible in his account of having undergone an in-service stressor as to his PTSD or an in-service event, injury or disease as to his unspecified bipolar disorder. 2. For the entirety of the rating period on appeal, the severity of the Veteran’s right knee disorder manifested as painful limitation of motion, and at worst, flexion at 50 degrees and extension at 0 degrees. 3. For the entirety of the rating period on appeal, the severity of the Veteran’s left knee disorder manifested as painful limitation of motion, and at worst, flexion at 40 degrees and extension at 0 degrees. 4. With resolution of the doubt in his favor, for the entirety of the rating period on appeal, the Veteran’s right knee lateral instability manifested as slight impairment. 5. With resolution of the doubt in his favor, for the entirety of the rating period on appeal, the Veteran’s left knee lateral instability manifested as slight impairment. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303(d), 3.304(f) (2019). 2. The criteria to establish an increased rating higher than 10 percent for the entirety of the rating period on appeal for a right knee disorder have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5010-5261 (2019). 3. The criteria to establish an increased rating higher than 10 percent for the entirety of the rating period on appeal for a left knee disorder have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5010-5260 (2019). 4. The criteria to establish a separate 10 percent rating from August 13, 2010 to February 23, 2015 and April 1, 2015 and continuing thereafter for right knee instability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5257 (2019). 5. The criteria to establish a separate 10 percent rating from August 13, 2010 to February 23, 2015 and April 1, 2015 and continuing thereafter for left knee instability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from April 1979 to March 1982 and April 1982 to May 1985. The Veteran was discharged in May 1985 from his second period of active service under other than honorable conditions. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of the Montgomery, Alabama Regional Office (RO). In August 2016, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In October 2019, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran received special monthly compensation (SMC) under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) on account of right knee degenerative joint disease rated 100 percent disabling and additional service-connected left knee degenerative joint disease independently ratable at 60 percent or more from February 24, 2015 to April 1, 2015. Service Connection – Acquired Psychiatric Disorder Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2019). The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) is applicable because the Veteran’s claim of service connection for an acquired psychiatric disorder was certified to the Board in September 2014. 79 Fed. Reg. 45,093, 45,094 (stating that the DSM-IV governs all applications for benefits certified to the Board prior to August 4, 2014). The issue of a current acquired psychiatric disorder is not in dispute because the April 2020 VA examiner diagnosed the Veteran with PTSD and unspecified bipolar disorder under the DSM-V. However, the claim will be denied because the Veteran is not credible as to his account of having undergone an in-service stressor as to his PTSD or an in-service event, injury or disease as to his unspecified bipolar disorder. The Veteran asserts that while the U.S.S. San Diego was docked in Italy or Spain between 1981 to 1983, immediately after having stepped off the gang-plank, he witnessed the gang-plank collapse into the water along with other individuals and that he experienced psychiatric symptoms such as depression, anger, anxiety, insomnia and panic. The Veteran’s first report of separation from the armed forces (DD Form 214) reflects honorable service from April 1979 to March 1982. The Veteran’s second DD Form 214 reflects that his character of discharge was under other than honorable conditions from April 1982 to May 1985. In a February 1995 administrative decision, VA found that the Veteran’s character of discharge as to his second period of service was under dishonorable conditions and that he was not entitled to VA benefits as to his second period of active service. The Veteran did not appeal the RO’s decision and the Board, as a matter of law, cannot consider evidence from the Veteran’s second period of active service from April 1982 to May 1985 because the Veteran has not attained “veteran” status as to his second period of active service. 38 U.S.C. § 101(2) (2012) (defining a “veteran” as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable”). Service treatment records (STRs) from the Veteran’s first period of active service are silent for complaints or contemporaneous reports pertaining to psychiatric symptoms. In his March 1982 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had frequent trouble sleeping, depression, excessive worry, or nervous trouble of any sort. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision). In a March 2020 response, the Joint Services Records Research Center (JSRRC) indicated that the U.S.S. San Diego’s command history and deck logs from 1981 reflect that the ship had not traveled to Italy or Spain and that the incident described by the Veteran was not recorded. In a March 2020 letter, the Department of Navy notified VA of having searched databases maintained by the Naval Safety Center and that there were no accident reports related to a gang-plank collapse concerning the U.S.S. San Diego. The JSRRC researches official military unit records and data bases for information which may verify the causal incident described by a veteran in a disability claim for compensation. See https://ww.rmda.army.mil/jsrrc/RMDA-JSRRC-Mission.html. The Naval Safety Center, in pertinent part, maintains data and information concerning naval safety, See https://www.navalsafetycenter.nay.mil. Having established a proper foundation, it is reasonable to infer, due to an absence of documentation that the JSRRC and Naval Safety Center finding is competent and credible evidence that Veteran did not undergo an in-service stressor or an in-service event, injury or disease as to his acquired psychiatric disorder during his first period of active service. See Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition to the JSRRC’s and Naval Safety Center’s findings, the Veteran denied ever having experienced frequent trouble sleeping, depression, excessive worry, or nervous trouble of any sort at separation for his first period of active service. Although the Veteran claims to have experienced psychiatric symptoms such as depression, anger, anxiety, insomnia and panic, he is competent to report having experienced such symptoms; however, he is not credible because the STRs are silent for complaints or contemporaneous reports concerning any psychiatric symptoms, the Veteran denied ever having such psychiatric symptoms at separation and the JSRRC and Naval Safety Center found no record of the Veteran’s claimed in-service stressor or in-service event, injury or disease. Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than the history as reported by the veteran). In his November 2020 brief, the Veteran through his representative, asserted that the RO failed its duty to assist by not including the year 1983 in the requests to the JSRRC and Naval Safety Center. However, as noted above, the Veteran’s second period of active service – April 1982 to May 1985 – was under dishonorable conditions. A preponderance of the evidence is against a finding that the Veteran underwent an in-service stressor and an in-service event, injury or disease pertaining to his acquired psychiatric disorder. STRs from the Veteran’s first period of active service are silent for complaints or contemporaneous reports pertaining to psychiatric symptoms and in his March 1982 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had frequent trouble sleeping, depression, excessive worry, or nervous trouble of any sort. The JSRRC indicated that the gang-plank incident described by the Veteran was not recorded and the Naval Safety Center indicated that there were no accident reports related to a gang-plank collapse concerning the U.S.S. San Diego. Therefore, service connection is not warranted and the claim is denied. Increased Rating – Right and Left Knee Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2019). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2019). Under DC 5010, arthritis due to trauma is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010 (2019). DC 5003 provides that degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003 (2019). Under DC 5003, when limitation of motion would be non-compensable, i.e., zero percent, under a limitation-of-motion code, but there is at least some limitation of motion, VA assigns a 10 percent disability rating for each major joint so affected, to be combined, not added. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of any limitation of motion, involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent evaluation, and the same with occasional incapacitating exacerbations warrants a 20 percent evaluation. Id. The knee is considered a major joint. 38 C.F.R. § 4.45(f) (2019). Under DC 5260, limitation of flexion to 60 degrees warrants a noncompensable rating; limitation of flexion to 45 degrees warrants a 10 percent rating; limitation of flexion to 30 degrees warrants a 20 percent rating and limitation of flexion to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260 (2019). Under DC 5261, limitation of extension limited to 5 degrees warrants a noncompensable rating; limitation of extension limited to 10 degrees warrants a 10 percent rating; limitation of extension limited to 15 degrees warrants a 20 percent rating; limitation of extension limited to 20 degrees warrants a 30 percent rating; limitation of extension limited to 30 degrees warrants a 40 percent rating and limitation of extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261 (2019). Under DC 5257, slight recurrent subluxation or lateral instability warrants a 10 percent rating, moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5257 (2019). The words “slight,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just,” under 38 C.F.R. § 4.6 (2019). Separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under DCs 5003-5010 and DC 5257 (or under DCs 5258 or 5259) without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 or DC 5261. The Veteran’s knee is rated 10 percent disabling from April 8, 2009 to February 23, 2015 and 10 percent disabling from April 1, 2015 and continuing thereafter under DCs 5010-5261 and 5010-5260 for a right knee and left knee disorder, respectively. The Veteran was rated 100 percent disabling from February 24, 2015 to March 31, 2015 under 38 C.F.R. § 4.30 for both knees. The appellate period for both knees is from August 13, 2010, the receipt date of the Veteran’s increased rating claim. In an August 2010 statement, the Veteran reported experiencing bilateral knee pain and swelling. In the December 2010 VA examination, the Veteran reported experiencing bilateral knee pain and flare-ups exacerbated by bending, stooping, lifting and running. The Veteran reported experiencing no limitation in his ability to walk and activities of daily living. Initial range of motion for the right knee was flexion at 130 degrees and extension at 0 degrees. There was no instability, swelling, heat, redness, crepitus or patellofemoral pain. Medial tenderness was noted. Initial range of motion for the left knee was flexion at 130 degrees and extension at 0 degrees. There was no instability, swelling, heat, redness, scarring, crepitus or patellofemoral pain. The Veteran performed repetitive-use testing with no additional limitation in functional impairment or range of motion. In his January 2012 notice of disagreement, the Veteran reported experiencing bilateral knee pain and inflammation resulting in trouble with bending, walking, stooping and standing for prolonged periods. The Veteran reported experiencing a “spastic reaction” limiting his ability to walk and bend. He also reported experiencing bilateral knee “giving out” and flare-ups manifested as pain and swelling. The Veteran is competent to report having experienced bilateral knee instability and DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). VA treatment records dated September 2011, December 2011, January 2012 and June 2012 reflect the Veteran’s report of experiencing bilateral knee pain and trouble with bending. A September 2012 VA treatment record reflects the Veteran’s report of experiencing bilateral knee pain and sensations of “giving out.” In an October 2013 VA treatment record, the Veteran reported experiencing bilateral knee pain exacerbated by movement, walking, climbing and prolonged standing. The Veteran also reported experiencing swelling from physical activity and bilateral knee buckling. Range of motion testing for both knees was flexion at 90 degrees and extension at 0 degrees with pain on motion. There was no crepitus, swelling, or redness. Joint stability testing was normal. Tenderness was noted. A February 2015 VA treatment record reflects the Veteran having undergone a bilateral knee arthroscopy, a right knee medial meniscectomy and left knee chondroplasty. The pre-operation diagnoses were right knee medial meniscal tear and left knee degenerative joint disease. A March 2015 VA bilateral knee radiograph revealed mild degenerative change, no effusion and no instability. An August 2015 VA treatment record reflects the Veteran’s report of experiencing bilateral knee pain. The examining physician noted no instability, effusion or deformity. VA treatment records dated September 2015 and October 2015 reflect the Veteran’s report of experiencing bilateral knee pain. In his August 2016 Board hearing testimony, the Veteran testified to experiencing bilateral knee pain, trouble with bending, popping, stumbling and losing balance. In the March 2019 VA examination, the Veteran was diagnosed with bilateral knee degenerative arthritis and a right knee meniscal tear. The Veteran reported experiencing flare-ups described as pain and functional impairment manifested as trouble with sitting, standing for prolonged periods, limping, stumbling and falling. Initial range of motion for the right knee was flexion at 120 degrees and extension at 0 degrees with pain on motion. The range of motion contributed to functional loss but the right knee pain did not cause functional loss. There was no pain with weight-bearing or crepitus. Localized tenderness was noted. Initial range of motion for the left knee was flexion at 110 degrees and extension at 0 degrees with pain on motion. The range of motion contributed to functional loss but the left knee pain did not cause functional loss. Pain on palpation was noted. There was no pain with weight-bearing or crepitus. The Veteran performed repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The examiner did not provide range of motion measurements after repetitive-use. The Veteran was not examined immediately after repetitive use and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use. Pain significantly limited functional ability with repetitive-use. The examiner was unable to describe in terms of range of motion due to the Veteran’s discomfort and pain having impacted range of motion. The examination was not conducted during a flare-up and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare-up. Pain and weakness significantly limited functional ability with flare-ups. The examiner was unable to describe in terms of range of motion due to the Veteran’s discomfort and pain having impacted range of motion. The examiner noted that interference with sitting and standing additionally contributed to the Veteran’s bilateral knee disorder. Muscle strength and joint stability testing revealed normal findings. There was no muscle atrophy, ankylosis, history of recurrent subluxation, lateral instability, recurrent effusion, tibial or fibular impairments. A right knee meniscal tear was noted with frequent episodes of joint pain and that the Veteran underwent a right knee meniscectomy in 2015 with residuals of discomfort and pain. There were no other pertinent physical findings or scars. The Veteran did not use assistive devices. There was pain on passive range of motion and non-weight bearing testing. In the December 2019 VA examination, the Veteran was diagnosed with bilateral knee degenerative arthritis and right knee meniscal tear. The Veteran reported experiencing bilateral knee pain, flare-ups and functional impairment due to bending, twisting, squatting and prolonged sitting. Initial range of motion testing for the right knee was flexion at 50 degrees and extension at 0 degrees with pain on motion. The range of motion did not contribute to functional loss. There was pain on palpation, pain with weight-bearing and crepitus. Initial range of motion testing for the left knee was flexion at 40 degrees and extension at 0 degrees with pain on motion. The range of motion did not contribute to functional loss. There was pain on palpation, pain with weight-bearing and crepitus. The Veteran was unable to perform repetitive-use testing with at least three repetitions due to bilateral knee pain. For both knees, the Veteran was not examined immediately after repetitive-use but the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive-use. Pain, fatigue, weakness and lack of endurance significantly limited functional ability with repetitive-use. The examiner described in terms of range of motion as flexion at 50 degrees and extension at 0 degrees for the right knee and flexion at 40 degrees and extension at 0 degrees for the left knee. For both knees, the examination was not conducted during a flare-up but the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up. Pain, fatigue, weakness and lack of endurance caused functional loss during a flare-up. The examiner described in terms of range of motion as flexion at 50 degrees and extension at 0 degrees for the right knee and flexion at 40 degrees and extension at 0 degrees for the left knee. Less movement than normal and interference with sitting were additional factors that contributed to the Veteran’s bilateral knee disorder. Joint stability testing revealed normal findings. Muscle strength testing revealed abnormal findings for both knees rated 4/5 for muscle strength and the reduction in muscle strength was due to the Veteran’s diagnosed bilateral knee disorder. There was no muscle atrophy, ankylosis, history of recurrent subluxation, lateral instability, recurrent effusion, tibial or fibular impairments. The examiner noted a right knee meniscal tear with residuals of pain. Bilateral knee scars were noted but the scars were not visible and the examiner was unable to measure. The Veteran did not use assistive devices. There was pain with non-weight bearing testing but the Veteran was unable to perform passive range of motion testing due to bilateral knee pain. A preponderance of the evidence is against a finding of increased ratings higher than 10 percent from August 13, 2010 to February 23, 2015 and April 1, 2015 and continuing thereafter for both knees under DCs 5010-5261 and 5010-5260. The evidence reflects that the severity of the Veteran’s right knee was, at worst, flexion at 50 degrees and extension at 0 degrees with painful motion, and the left knee was, at worst, flexion at 40 degrees and extension at 0 degrees with painful motion. Therefore, higher increased ratings are not warranted and the claims are denied. Based on the benefit-of-the-doubt doctrine, the Board will grant separate 10 percent ratings under DC 5257 from August 13, 2010 to February 23, 2015 and April 1, 2015 and continuing thereafter for the Veteran’s right and left knee instability. Although three VA examinations revealed no bilateral knee instability, as noted above, DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned, and the Veteran has consistently reported experiencing trouble with walking, bilateral knee “giving out,” and falling. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, separate 10 percent ratings are warranted and the claims are granted. A separate rating under DC 5256 is not warranted because the evidence shows the Veteran does not have right or left knee ankylosis. A separate rating under DC 5258 is not warranted because the Veteran did not undergo a dislocated semilunar cartilage for his left knee disorder. Although the Veteran was diagnosed with a right knee meniscal tear with residuals of pain, the evidence does not reflect frequent episodes of locking and effusion. A separate rating under DC 5259 is not warranted because the evidence does not indicate that the Veteran underwent removal of semilunar cartilage. A separate rating under DC 5262 is not warranted because the evidence does not show an impairment of the Veteran’s tibia and fibula. A separate rating is not warranted under DC 5263 because the evidence does not show that the Veteran has genu recurvatum. REASONS FOR REMAND The remaining matter is remanded for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR In his August 2016 Board hearing, the Veteran testified that his bilateral knee disorder affected his job as an information technology (IT) specialist due to trouble with bending, stooping and sitting. The March 2019 and December 2019 VA examiner indicated that the Veteran’s bilateral knee disorder impacted his ability to work. The issue of entitlement to a TDIU has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). Remand is warranted for due process development for the issue of TDIU, including adjudication by the RO. A June 2020 VA treatment record reflects the Veteran’s report of working in IT services. The Veteran’s employment status is not clear and the Veteran has not submitted a VA Form 21-8940, Application For Increased Compensation Based On Unemployability. 2. Provide the appropriate VCAA notice concerning the claim for a TDIU. 3. Ask the Veteran to complete and return a VA Form 21-8940, Application For Increased Compensation Based On Unemployability, and/or other documents containing the necessary employment and education history. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.