Citation Nr: 21006960 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 12-33 911A DATE: February 8, 2021 ORDER Entitlement to an initial compensable rating for right knee scars is denied. Entitlement to an increased rating for degenerative arthritis of the left knee is denied. Entitlement to a rating of 30 percent for degenerative arthritis of the left knee for limitation of flexion effective October 26, 2020 is granted. Entitlement to a rating of 10 percent for degenerative arthritis of the left knee for slight lateral instability effective April 13, 2017 is granted. REMANDED Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to total disability due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s knee scars are not manifest by any disabling effects not considered under Diagnostic Codes 7800-04. 2. The Veteran’s degenerative arthritis of the left knee is manifest by limitation of extension of no more than 10 degrees. 3. The Veteran’s degenerative arthritis of the left knee is manifest by limitation of flexion of 15 degrees as of October 26, 2020. 4. The Veteran’s degenerative arthritis of the left knee is manifest by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for right knee scars are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. 2. The criteria for a rating in excess of 10 percent for degenerative arthritis of the left knee for limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 3. The criteria for a rating of 30 percent for degenerative arthritis of the left knee for limitation of flexion effective October 26, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 4. The criteria for a rating of 10 percent for degenerative arthritis of the left knee for slight lateral instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1972 to May 1975. In October 2019 the Board issued a decision denying the claim of entitlement to service connection for PTSD, an initial compensable rating for right knee scars and TDIU. The Veteran appealed that decision to the Court of Appeals of Veterans Claims (Court) and in an order dated May 2020, the Court set aside the Board’s denial for entitlement to service connection for service connection for PTSD, an initial compensable rating for right knee scars and TDIU and remanded the issue for further development and readjudication. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Entitlement to an initial compensable rating for right knee scars The Veteran contends he is entitled to a compensable rating for his right knee scars. Scars, other than of the head, face, or neck, are evaluated under the provisions of 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, and 7805. Under DC 7801, a scar not of the head, face, or neck that is deep and nonlinear is rated as follows: a 10 percent rating is assigned for an area of at least 6 square inches (36 sq. cm.) but less than 12 square inches (77 sq. cm.); a 20 percent rating is assigned for an area of at least 12 square inches but less than 72 square inches (465 sq. cm.); a 30 percent rating is assigned for an area of at least 72 square inches but less than 144 square inches (929 sq. cm.); and a maximum 40 percent rating is assigned for an area of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7801. A deep scar is one associated with underlying soft tissue damage. Id. at Note (1). Under DC 7802, a maximum 10 percent rating is assigned for a superficial and nonlinear scar not of the head, face, or neck if it measures 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802. A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (1). DC 7804 assigns ratings for scars that are unstable or painful. A 10 percent rating is assigned for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Under DC 7805, other disabling effects not considered under diagnostic codes 7800-7804 are rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. Upon review of the record, the Board finds that a compensable rating is not warranted as the scars on the Veteran’s right knee are linear, not greater than 39 square centimeters, and are neither painful nor unstable. The Veteran underwent VA examinations in December 2017, May 2017, February 2020 and October 2020. The examiners noted two scars on the right knee with the first scar located on the lateral knee and measuring approximately seven centimeters by 0.5 centimeters and the second scar located on the medial knee measuring approximately 0.5 centimeters by 0.3 centimeters. The February 2020 VA examiner reported that right knee scar was neither painful nor unstable. Review of the medical records does not reveal complaints or treatment for painful or unstable scars. As such, the evidence does not establish the presence of a deep nonlinear scar for an area of at least 36 square centimeters, or a superficial and nonlinear scar of 929 square centimeters, or a scar that is unstable or painful. 38 C.F.R. § 4.118, DC 7801, 7804. Moreover, there is no evidence that the Veteran’s scars caused any other impairment. See 38 C.F.R. § 4.118, DC 7805. Accordingly, the Board finds that a compensable rating for the Veteran’s right knee scars is not warranted at any time during the appeal period. 2. Entitlement to an increased rating for degenerative arthritis left knee The Veteran contends he is entitled to an increased rating for degenerative arthritis of the left knee. The Veteran’s degenerative arthritis is rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran attended a VA examination in December 2017 and did not report any flare-ups or functional loss. Range of motion testing revealed flexion from five to 120 degrees and extension from 120 to five degrees with pain on extension and pain with weight-bearing. Physical examination revealed normal muscle strength and no atrophy. In May 2017 the Veteran attended another VA examination, as the December examination almost solely focused on the right knee. The examiner noted osteoarthritis of the left knee with pain beginning in 2004. The Veteran again reported no flare-ups but did report functional loss consisting of limited walking and activities. Range of motion testing revealed flexion from 10 to 110 degrees and extension from 110 to 10 degrees with pain on extension and functional loss that prevented bending and limited extension, which increased his limp. The Veteran had pain with weight-bearing, tenderness and/or pain on the lateral joint line and no crepitus. The Veteran performed repetitive use testing with no additional loss. The examiner concluded that pain, fatigue, weakness, lack of endurance and incoordination significantly limited functional ability with repeated use over time noting that there was an overall decrease since the December examination but no evidence of additional changes with repetition. Physical examination revealed reduced muscle strength of three out of five for flexion and four out of five for extension and no ankylosis. Joint stability testing yielded normal results with no history of recurrent subluxation, lateral instability or recurrent effusion. The examiner noted constant use of a cane and pain with passive range of motion and non-weight-bearing. In February 2020 the Veteran underwent another VA examination and reported regular pain described as an eight out of ten and flare-ups that last up to a day, He described difficulty with walking, standing, climbing stairs and bending over to lift. Range of motion testing revealed flexion from five to 95 degrees and extension from 95 to five degrees with motion limited due to pain. The Veteran had pain with weight-bearing and tenderness at the bilateral medical and lateral aspect and joint line and no crepitus. The Veteran was unable to complete repetitive use testing out of concerns for increased pain. The examiner found that weakness, lack of endurance and incoordination significantly limited functional ability with repeated use over time but could not describe in terms of range of motion as repetition elicited more pain and aggravated the condition. The Veteran displayed instability of station, disturbance of locomotion and interference with sitting and standing. He had normal muscle strength with no atrophy, pain with non-weight bearing and passive range of motion, and no ankylosis. There was no history of recurrent subluxation or lateral instability and joint stability tests yielded normal results. The Veteran did not have recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairments but he did have a meniscal tear which required surgical repair in 1996 causing residual pain and loss of motion. Functionally, the Veteran requires constant use of a walker and has difficulty with prolonged walking and standing. The Veteran attended another VA examination in October 2020. He expressed increased pain in both knees, needing a wheeled walker for the past two years and falling multiple times due to his knee giving out. He described constant stabbing and achy pain, popping with movement and pain even when sitting. The Veteran denied experiencing flare-ups with the left knee but reported functional loss consisting of needing to use an electric cart at the store and difficulty getting in and out of his truck. Range of motion testing revealed flexion from five to 90 degrees and extension from 90 to five degrees with pain on motion resulting in the inability to bend and stand back up. The Veteran had pain with weight-bearing, crepitus, and severe stabbing pain located medial and lateral collateral. Repetitive use testing did not result in additional loss. The examiner concluded that pain, fatigue and weakness significantly limit functional ability with repeated use over a period of time resulting in additional loss of motion of flexion from five to 15 degrees and extension from 15 to five degrees. The Veteran displayed instability of station described as needing something to hold on to as his knee will not support him, and he will fall within five to six minutes and interference with sitting and standing described as requiring assistance to lower himself and to stand up. He had reduced muscle strength of four out of five, no muscle atrophy, no ankylosis, and a history of slight recurrent subluxation and lateral instability but no recurrent effusion. The joint stability tests yielded normal results. The Veteran did not have recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairments but he did have a meniscus condition resulting in frequent episodes of joint “locking.” The Veteran had an arthroscopy in 1980 with residuals consisting of increased pain and decreased range of motion. He displayed objective evidence of pain on passive range of motion and with non-weight bearing. The examiner noted constant use of a wheeled walker when out and about and imaging results showing tricompartmental degenerative joint disease. Functionally, the examiner reported that the Veteran is unable to bend and lift anything due to pain and instability, has difficulty getting in and out of cars, and has fallen several times recently. Review of the medical records reveal that in January 2017 the Veteran reported a sensation of knee buckling while walking and requested a walker or cane; however, an assessment that same month reported normal muscle strength and the ability to ambulate independently. He complained of painful knees that interfere with walking in April 2017. In October 2019, the Veteran suffered a fall due to his knee giving out. Range of motion testing in January 2020 revealed extension to 10 degrees and flexion to 100 degrees with reduced strength of four out of five. The Veteran reported falling in February 2020 due to pain and his knees buckling. Range of motion testing showed extension to five degrees and flexion to 75 degrees and he displayed significant weakness and impaired balance. The Veteran again reported that his knees buckle in June 2020 and range of motion testing revealed flexion to 95 degrees and extension at negative 20 degrees with reduced muscle strength of four out of five for flexion and three out of five for extension. In July the treatment notes reported no falls, but chronic aching pain described as a ten out of ten that is worse with activity and relieved with rest. The examination revealed crepitus but no joint laxity. The Veteran declined a referral for a scooter and was encouraged to use a walker at all times. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). The Veteran has consistently described left knee pain that causes difficulty with walking, standing and sitting and knee instability resulting in multiple falls. The Veteran is competent to provide testimony as to the presence of his observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In order to warrant the next higher rating of 20 percent rating the evidence must establish limitation of extension to 15 degrees. The evidence reveals extension limited to, at most, 10 degrees, which is contemplated by the Veteran’s current rating. The Board considered whether a higher rating is warranted on the basis of functional loss due to pain, weakness, incoordination, disturbance of locomotion or interference with sitting and/or standing under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. In this case, while the VA examiners generally found that weakness, pain and incoordination limits functional ability, the evidence does not establish that these factors, cause functional loss more closely approximating limitation of extension to 15 degrees. As such, a rating in excess of 10 percent is not warranted for limitation of extension. However, the Board notes the evidence of record reveals that the Veteran’s degenerative arthritis also results in limitation of flexion. The October 2020 VA examiner concluded that pain, fatigue, and weakness would significantly limit functional ability with repeated use over time resulting in flexion limited to 15 degrees. This finding that pain, fatigue and weakness causes additional limitations in flexion is consistent with the medical evidence revealing pain and reduced muscle strength with flexion. Under DC 5260 for limitation of flexion of the knee a 10 percent rating applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees. A 30 percent rating applies when flexion is limited to 15 degrees. As such, the Board finds that when considering the additional limitation of motion resulting from factors such as pain, fatigue, and weakness, the Veteran’s left knee condition warrants a separate rating of 30 percent for limitation of flexion of 15 degrees effective October 26, 2020. The Board also notes that the record includes evidence of lateral instability. Under Diagnostic Code 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The evidence of record includes the Veteran’s subjective reports of his knee giving way and/or buckling and medical treatment records confirming that the Veteran suffered a fall in October 2019 and February 2020 and requires constant use of a walker. As such, the Board finds a separate rating of 10 percent for slight lateral knee instability is warranted effective April 13, 2017. The Board notes that a higher rating is not warranted under DC 5257 as the VA examinations of record reveal that the joint stability tests consistently yielded normal results. The Board finds is reasonable to assume that, if the pathology was greater than slight, this would have been found on objective examination. The Board also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). For the following reasons, the Veteran does not warrant any additional separate rating for his left knee condition. The medical evidence establishes that the Veteran has measurable range of motion in his left knee, thus ankylosis of the knee is not shown and an evaluation under DC 5256 is not warranted. The evidence does not establish dislocated semilunar cartilage to warrant an evaluation under DC 5258, removal of semilunar cartilage to warrant an evaluation under DC 5259, or an impairment of the tibia and fibula or genu recurvatum to warrant an evaluation under DCs 5262 or 5263. See 38 C.F.R. § 4.71a. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for limitation of extension. However, a 10 percent rating for lateral instability of the left knee effective April 13, 2017 and a 30 percent rating for limitation of flexion of the left knee effective October 26, 2020 is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder The Veteran attended a VA examination in January 2018. The examiner concluded that the Veteran does not have diagnosis of PTSD but does have a diagnosis of depressive disorder unspecified with symptoms that appear as likely as not related to a dynamic other than military trauma. In April 2019, the examiner provided an addendum stating that there is no evidence that undiagnosed PTSD can be attributed to service and adjustment and depressive disorders are likely as not due to present medical conditions none of which appear congruent with service-connected pathologies. In September 2020 the Veteran provided an evaluation from a private provider Dr. C. R. who diagnosed PTSD and major depressive disorder. Dr. C.R. also noted that the Veteran has several service-connected conditions and the treatment records suggest that the Veteran is suffering from an adjustment and stress related disorder due to these conditions. As such, the Board finds that the issue of secondary service connection has been raised. Therefore, a remand is necessary to address the conflicting evidence regarding the Veteran’s psychiatric diagnoses and to obtain an opinion addressing the theory of secondary service connection. 2. Entitlement to TDIU The Veteran’s claim for TDIU requires readjudication following the effectuation of the Board’s grant of separate ratings for the Veteran’s left knee condition and assignment of a rating for that condition in the first instance. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain a medical opinion from a VA psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. The claims file should be made available to the examiner. If the examiner determines that an examination is warrant, one must be scheduled and any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner should list all psychiatric disorders present during the time period of the claim. With regard to each identified acquired psychiatric disorder present during the claim, the VA examiner must address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed psychiatric condition is related to active service or is caused by or aggravated by military service. (b.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that any diagnosed psychiatric condition is proximately due to or the result of the Veteran’s service-connected conditions? (b.) If the answer to (a) is negative, is it at least as likely as not that the any diagnosed psychiatric condition is aggravated (i.e., permanently or temporarily worsened) by any service-connected conditions? (c.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must consider and discuss the evaluation conducted by Dr. C.R. to include the finding of a PTSD diagnosis. See Medical Treatment Record – Non- Government Facility September 25, 2020. If PTSD is diagnosed, the specific stressors giving rise to the condition must be identified. In providing the requested opinions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, but that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The examiner must also provide an assessment of the Veteran’s functional limitations due to any diagnosed psychiatric disorder as it may relate to his ability to function in a work setting and to perform work tasks. However, the examiner should refrain from commenting on the Veteran’s employability. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Finally, readjudicate the appeal. If the benefits sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.