Citation Nr: 21008168
Decision Date: 02/11/21	Archive Date: 02/11/21

DOCKET NO. 15-31 011
DATE: February 11, 2021

ORDER

Service connection for glaucoma is denied.

A rating of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol use disorder from August 9, 2016 to February 28, 2019 is granted.

A rating higher than 20 percent for lumbar intervertebral disc syndrome with degenerative arthritis (low back disability) is denied. 

An initial rating higher than 20 percent prior to February 28, 2019 for right lower extremity radiculopathy is denied.

An initial rating of 20 percent, but no higher, effective February 28, 2019 for right lower extremity radiculopathy is granted. 

An initial rating of 20 percent, but no higher, for left lower extremity radiculopathy from August 9, 2016 to February 28, 2019 is granted.  

An initial rating higher than 20 percent for left lower extremity radiculopathy since February 28, 2019 is denied. 

An initial rating of 10 percent, but no higher, for instability of the right knee effective August 9, 2016 to February 28, 2019 is granted. 

An initial rating higher than 10 percent for instability of the right knee since February 28, 2019 is denied. 

An initial rating higher than 10 percent for limitation of flexion of the right knee is denied. 

A rating higher than 20 percent for instability of the left knee is denied. 

A rating of 10 percent for limitation of extension of the left knee effective January 24, 2019 is granted.  

A rating higher than 10 percent for limitation of flexion of the left knee is denied. 

REMANDED

Entitlement to service connection for cataracts is remanded.

Entitlement to service connection for obstructive sleep apnea is remanded. 

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 28, 2019 is remanded. 

FINDINGS OF FACT

1. The Veteran has not been diagnosed with glaucoma of either eye.

1. The Veteran’s PTSD with major depressive disorder and alcohol use disorder was manifested by symptoms and occupational and social impairment corresponding to a 70 percent rating from August 9, 2016 to February 28, 2019.

2. The Veteran’s low back disability has not been manifested by flexion limited to 30 degrees or less or by ankylosis, and has not required bedrest prescribed by a physician during the period under review.

3. Prior to February 28, 2019, the Veteran’s right lower extremity radiculopathy was not manifested by moderately severe or severe incomplete paralysis of the sciatic nerve, or by complete paralysis. 

4. As of February 28, 2019, the Veteran’s right lower extremity radiculopathy has been manifested by moderate incomplete paralysis of the sciatic nerve, but not by moderately severe or severe incomplete paralysis, or complete paralysis of the sciatic nerve.  

5. From August 9, 2016 to February 28, 2019, the Veteran’s left lower extremity radiculopathy was manifested by moderate incomplete paralysis of the sciatic nerve, but not by moderately severe or severe incomplete paralysis, or by complete paralysis of the sciatic nerve. 

6. Since February 28, 2019, the Veteran’s left lower extremity radiculopathy has not been manifested by moderately severe or severe incomplete paralysis, or by complete paralysis of the sciatic nerve

7. The Veteran had mild instability of the right knee from August 9, 2016 to February 28, 2019; he has not had moderate or severe instability of the right knee during the period under review; he has not undergone surgical repair of the right knee, and a medical provider has not prescribed a brace, cane, crutches, or walker due to right knee instability. 

8. The Veteran’s flexion of the right knee has exceeded 60 degrees, and extension of the right knee has been to 0 degrees, throughout the period under review. 

9. The Veteran has not had severe instability of the left knee during the period under review; he does not have an unrepaired or failed repair of a complete ligament tear of the left knee, or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair for which he has been prescribed a brace and either a cane or walker

10. The Veteran’s flexion of the left knee has exceeded 60 degrees throughout the period under review.

11. Prior to January 24, 2019, extension of the left knee was to 0 degrees; as of that date, extension of the left knee has been limited to 10 degrees. 

CONCLUSIONS OF LAW

1. The criteria for service connection for glaucoma have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

2. The criteria for a rating of 70 percent, but no higher, from August 9, 2016 to February 28, 2019 for PTSD with major depressive disorder and alcohol use disorder have been met.  

3. The criteria for a rating higher than 20 percent for a low back disability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Codes 5242, 5243. 

4. The criteria for an initial rating higher than 20 percent for right lower extremity radiculopathy prior to February 28, 2019 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.24a, Diagnostic Code 8520. 

5.  The criteria for an initial rating of 20 percent, but no higher, for right lower extremity radiculopathy as of February 28, 2019 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.24a, Diagnostic Code 8520.

6. The criteria for an initial rating of 20 percent, but no higher, from August 9, 2016 to February 28, 2019 for left lower extremity radiculopathy have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.24a, Diagnostic Code 8520. 

7. The criteria for an initial rating higher than 20 percent for left lower extremity radiculopathy since February 28, 2019 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.24a, Diagnostic Code 8520.

8. The criteria for an initial rating of 10 percent for instability of the right knee effective August 9, 2016 to February 28, 2019 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5257.

9. The criteria for an initial rating higher than 10 percent for instability of the right knee since February 28, 2019  have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5257; 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257).   

10. The criteria for an initial rating higher than 10 percent for limitation of flexion of the right knee have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5260.  

11. The criteria for a rating higher than 20 percent for instability of the left knee have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5257; 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257).   

12. The criteria for a rating of 10 percent for limitation of extension of the left knee effective January 24, 2019, but no earlier, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5261. 

13. The criteria for a rating higher than 10 percent for limitation of flexion of the left knee have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had an honorable career in the United States Army, serving on active duty from April 1975 to April 1995.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2014, May 2017, and November 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  The Board remanded the matters for further action in May 2019. 

The Board finds that the issue of entitlement to TDIU since February 28, 2019 is moot because an October 2020 rating decision granted a 100 percent rating for the Veteran’s PTSD effective February 28, 2019.  TDIU is a benefit that is only awarded when the schedular rating is less than total for the disability or disabilities on which the TDIU would be based.  See 38 C.F.R. § 4.16(a); Vettese v. Brown, 7 Vet App. 31 (1994) (holding that a “claim for TDIU presupposes that the rating for the condition is less than 100 percent”).  However, the issue of entitlement to TDIU prior to February 28, 2019 remains on appeal as part and parcel of the increased rating claims, as the record reasonably raises the issue of unemployability due to the Veteran’s service-connected low back disability and associated bilateral lower extremity radiculopathy, bilateral knee disabilities, and PTSD.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). 

The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2018.  A transcript of the hearing is of record. 

Service Connection

Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a).  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).  

To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the “nexus” element).  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted).  

Glaucoma

The Veteran seeks to establish service connection for glaucoma, which he states is related to in-service eye injuries and symptoms.  (The claim for cataracts is being remanded for further development, as discussed below.)  For the following reasons, the Board finds that the criteria for service connection are not satisfied. 

The Veteran’s March 1975 enlistment examination report reflects a normal clinical evaluation of his eyes.  A refractive error was noted.  The service treatment records show that in 1978 he was treated for a cyst under his right eye.  A November 1978 optometry consultation report notes bilateral post-polar and cortical cataracts.  The impression was a sebaceous cyst, which was excised.  

The service treatment records further show that in March 1980, the Veteran complained of pain behind his right eye, and reported that he injured his eye in a football game approximately four weeks earlier.  The eye was scratched.  Two weeks later, the Veteran had headaches.  He also experienced flashes in his peripheral vision.  The Veteran was assessed with a “questionable eye problem.”  A March 1980 optometry examination report reflects diagnoses of hyperopia and astigmatism, both of which were characterized as refractive errors.  No other abnormalities were noted. 

There is no further mention of an eye problem in the service treatment records until a November 1982 entry, which reflects that the Veteran was poked in the right eye by another individual during a game.  He stated that he could be driving or sitting and see a flash.  An examination was within normal limits (“WNL”).  In 1986 he had an episode of left eye conjunctivitis.  A March 1987 optometry record lists a diagnosis of post cortical cataracts “noted back to 1978” and which were “probably congenital.”  

A March 1990 inpatient treatment cover sheet reflects that the Veteran was to be separated with disability separation pay with a diagnosis of “severe glaucoma” in both eyes.  The record is in type, not handwritten, and appears to have been generated by computer.  Thus, it is not a treatment record reflecting a physician’s notes, but rather a data summary for administrative purposes.  The Board finds it was clearly generated in error.  In this regard, service treatment records dated prior to and since that record do not show diagnoses of glaucoma, or of any eye condition other than refractive errors such as myopia and astigmatism and the aforementioned eye injuries and conjunctivitis.  It is implausible that treatment or diagnoses of severe glaucoma would not be noted in any of these records, including the optometry records, if the Veteran in fact had that condition.  Moreover, the Veteran did not separate from service in April 1990 with disability severance pay.  Rather, he retired in April 1995.  Service examination reports dated in September 1991 and March 1993 reflect normal clinical evaluations of the Veteran’s eyes.  He had refractive errors corrected to 20/20 bilaterally.  

The December 1994 retirement examination report similarly shows a normal clinical evaluation of the eyes, with refractive errors corrected to 20/20 bilaterally.  With regard to the refractive error, the Veteran was noted to have myopia in the summary of defects and diagnoses section of the form.   In the December 1994 report of medical history, he denied a history of eye trouble.  The physician’s summary section of the form notes that the Veteran wore glasses for myopia, but does not mention any other eye condition.  

Accordingly, the Board finds that a chronic eye condition did not manifest in service, and that the April 1990 administrative record reflecting a diagnosis of severe glaucoma was generated in error. 

Post-service VA treatment records show that in June 2013, the Veteran was seen for an ophthalmological evaluation.  The record notes a history of trauma to the left eye; more specifically, the Veteran reported a “remote poke to the left eye [that occurred] years ago.”  He had a history of a diagnosis of optic neuropathy of the left eye with pallor thinning.  Based on examination, the Veteran was diagnosed with optic atrophy of the left eye consistent with nerve pallor, and an afferent pupillary defect.  A Humphrey visual field (“HVF”) test showed an inferior altitudinal defect on mean deviation.  The Veteran stated he was told he had this problem years ago.  Glaucoma in the right eye was also suspected.  A November 2013 addendum to this record states that a magnetic resonance imaging study (MRI) showed asymmetric atrophy of the left optic nerve.  

in June 2015, the Veteran reported a history of trauma to the left eye and subsequent vision impairment.  However, the treating ophthalmologist found that a Humphrey visual field (“HVF”) test showed worsening vision in the left eye that was more consistent with a vascular cause.  The Veteran was also suspected to have glaucoma.  He was diagnosed with nuclear sclerotic cataracts in both eyes.  

The VA treatment records also show findings of pre-glaucoma in both eyes, but do not reflect diagnoses of glaucoma. 

A VA eye examination was performed in November 2019.  The examination report reflects diagnoses of bilateral pseudophakia based on cataract surgery performed in 2017, and ischemic optic atrophy of the left eye.  The examiner opined that the Veteran’s current eye conditions were less likely than not related to his in-service eye conditions.  The examiner explained that during service the Veteran was noted to have cortical cataracts in 1978, with 20/20 corrected vision in each eye at that time and at separation in 1994.  The examiner stated that the cortical cataracts were developmental spokes that the Veteran “entered the military with.”  His loss of vision noted in the June 2013 VA treatment record was due to ischemic neuropathy and unrelated to a disease, injury, or event in the military.  The examiner stated that the Veteran has never been diagnosed with glaucoma.  The examiner noted the fact that the Veteran had corneal abrasion in 1981 playing football.  Finally, the examiner noted that the onset of the Veteran’s current eye conditions began after his military service. 

Based on the evidence reviewed above, the Board finds that the Veteran does not have a current diagnosis of glaucoma, as found by the November 2019 VA examiner, who examined the Veteran and reviewed his medical records.  The findings of pre-glaucoma do not equate to a diagnosis of glaucoma, and the VA examiner confirmed that the Veteran does not currently have glaucoma.  Moreover, the evidence does not show an in-service disease, injury, or event that may be related to glaucoma.  As discussed above, the Board finds that the March 1990 diagnosis of “severe glaucoma” in an administrative record was not a medical finding, and that this record was generated in error, since the service treatment records do not otherwise note or reference findings of glaucoma, and subsequent service examinations do not reflect findings of glaucoma or other abnormalities of the eyes apart from a refractive error. 

Accordingly, as the Veteran has not been diagnosed with glaucoma during the pendency of this claim, and as the probative evidence shows that the Veteran did not have an in-service disease or injury related to glaucoma, the criteria for service connection are not satisfied.  See Holton, 557 F.3d at 1366; see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (upholding VA’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes).  

The Board notes that the Veteran has not filed a claim for service connection for optic neuropathy or atrophy of the left eye, which has been attributed to a prior injury.  See June 2013 VA Treatment Record.  The present claim does not reasonably encompass that diagnosis as the Veteran has generally only mentioned cataracts and glaucoma in statements with regard to this claim.  Cf. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  That said, even if it did, the service treatment records do not show that the Veteran sustained an injury to his left eye, and the Veteran does not state otherwise.  Rather, they show injuries to his right eye.  Accordingly, as an in-service disease, injury, or event is not shown with regard to the optic nerve neuropathy/atrophy of the left eye, the criteria for service connection are not met.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303.  By the same token, a VA medical opinion is not warranted with respect to that diagnosis.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

As discussed below, the issue of service connection for cataracts is being remanded for further development.  

Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

Increased Rating

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  

Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.  All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

 

PTSD

The Veteran’s PTSD has been assigned a 50-percent rating prior to February 28, 2019, and a 100-percent rating effective that date.  For the reasons discussed below, the Board finds that the criteria for a 70-percent rating have been met from August 9, 2016, the date of claim, to February 28, 2019, the effective date of the current 100 percent rating.  

Preliminarily, the proper period under appellate review must be clarified.  In this regard, in the November 2017 Notice of Disagreement (NOD), the Veteran, through his representative, argued that the date of claim for an increased rating for his PTSD is December 10, 2012.  The Board finds that that is incorrect as a matter of law.  He filed an informal claim on that date.  See December 2012 Correspondence.  He then contacted VA in August 2013 requesting to cancel the claim.  See August 2013 VA 21-0820.  However, in December 2013, the Veteran’s representative submitted a letter stating that VA should continue with adjudication of the December 2012 claim, and that the Veteran did not intend to withdraw it.  A VA PTSD examination was performed in January 2014, but the claim was not addressed in a January 2014 rating decision issued later that month, which addressed other claims.  

Significantly, a routine VA PTSD examination was performed in January 2015, and a rating decision was issued in September 2015 continuing the 50 percent rating for the Veteran’s PTSD based on the findings in the examination report.  The Veteran did not appeal that decision, and consequently it became final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal). 

The January 2015 rating decision “extinguished” the December 2012 claim for an increased rating for PTSD.  See Williams v. Peake, 521 F.3d 1348, 1349-50 (Fed. Cir. 2008) (holding that subsequent adjudication of a claim will extinguish identical, prior “pending” claims to the same benefit).  Thus, the December 2012 claim is no longer pending. 

Accordingly, as a matter of law, the proper date of claim is the Veteran’s August 9, 2016 intent to file, as he filed a claim for an increased rating for his PTSD within a year of that intent to file, on March 2, 2017.  See 38 C.F.R. § 3.155(b).

The Board notes that its May 2019 decision determined that the Veteran withdrew the issue of entitlement to an effective date earlier than September 17, 2010 for the award of the 50 percent rating for his PTSD.  As it is not clear that he also intended to withdraw the issue of whether the present claim relates back to his December 2012 claim, the Board has provided the above discussion explaining why August 9, 2016 is the proper date of claim as a matter of law. 

A. Rating Criteria

The Veteran’s service-connected PTSD with major depressive disorder and alcohol use disorder is rated under Diagnostic Code (DC) 9411, which pertains to PTSD.  38 C.F.R. § 4.130.  Almost all mental health disorders (with exceptions not applicable here) are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment.  Id.  

Under the General Rating Formula, a 10 percent disability rating requires:

Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 

A 30 percent disability rating requires: 

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, or recent events).

A 50 percent disability rating requires:

Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent disability rating requires:

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting; inability to establish and maintain effective relationships.)

A 100 percent disability 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 (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 

 Id.

The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id.  Rather, VA must consider all symptoms of a claimant’s condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-V).  Id. at 443; see 38 C.F.R. § 4.130. 

If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned.  Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). 

In sum, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms.  Vazquez-Claudio, 713 F.3d at 118. 

While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126(b).

B. Analysis 

In the March 2017 VA examination report, the examiner found that, for rating purposes, symptoms of the Veteran’s service-connected PTSD with alcohol use disorder consisted of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work-like setting.  On observation, the Veteran was moderately groomed, and appropriately dressed.  His behavior was cooperative and appropriate; he did not exhibit signs of psychomotor agitation or retardation.  His speech was within normal limits.  His mood was dysthymic.  His affect restricted.  His thought process was linear, and his thought content devoid of perceptional disturbances.  He denied suicidal or homicidal ideation.  His judgment was grossly intact.  He had been employed as a mail carrier for over twenty years.  The examiner found that the Veteran’s PTSD and alcohol use disorder caused occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he was generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.

A September 2018 VA treatment record reflects that the Veteran was still working and went to work “most of the time.”  However, recently he dreaded going to work due to a new employee who reminded him of his in-service trauma.  His mood fluctuated depending on the day and who he was around; he was not mad or upset if he was alone.  He had nightmares occurring four to five times per week and hypervigilance.  He stated that he “thinks he sees things” when he is alone, and that this occurred two to three times per week.  He added that “something will cause him to take a second look.”  On mental status examination, he was appropriately dressed, with good hygiene and grooming.  He was alert, attentive, and oriented.  His behavior was cooperative.  His speech was normal in rate and rhythm.  His thought process was normal and coherent.  His insight and judgment were good. 

The February 2019 VA examination report reflects that, for rating purposes, the examiner found that symptoms of the Veteran’s service-connected PTSD with alcohol use disorder consisted of depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, impairment of short- and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and neglect of personal appearance and hygiene.  On observation, the Veteran was appropriately dressed.  He was oriented to person, place, time, and situation.  He exhibited psychomotor retardation. His speech quantity was within normal limits, and his speech quality was slowed.  His mood was depressed and tearful.  His affect was flat.  His attention and concentration were mildly impaired.  His thought processes were linear and logical, with slowed information processing.  He had perceptual hallucinations with regard to a “child that was killed,” but earlier in the examination report this incident was only mentioned in discussing the content of the Veteran’s reported nightmares; he did not state that this occurred when he was awake.  His judgment and insight were good.  

With regard to the Veteran’s relevant social, marital, and family history, the examination report states that he lived with his girlfriend of the past two years on a part-time basis, and at other times lived alone.  He was worried about his relationship with her as she stated he was “mean” due to his temper.  He stated that she reported he was angry all the time and got angry for no reason.  He had a history of three divorces.  He denied engaging in social interactions with friends.  

Regarding his occupational history, the Veteran had been employed as a mail carrier from 1995 to 2018, when he was “forced” into retirement.  In this regard, he often had excused absences due to the frequency of his nightmares and anxiety.  He noted getting into an argument with his supervisor and being suspended.  He also noted ongoing deterioration in his work performance due to forgetfulness and completing his route too slowly or having to repeat sections of his route because he had forgot to deliver mail.  He was missing work up to two days a week toward the end of his career due to sleep disturbances.   

With regard to the Veteran’s occupational and social impairment, the examiner found that the Veteran’s PTSD with alcohol use disorder caused deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.  The examiner stated in this regard that the Veteran’s disorder had a severe impact on occupational functioning.  He would have difficulty completing occupational tasks that required sustained attention and concentration, significant interpersonal interaction, and regular attendance (due to morning fatigue caused by sleep impairment).  

Resolving any reasonable doubt in favor of the Veteran, the Board finds that a 70-percent rating is warranted effective August 9, 2016, which is the date of claim as explained above.  See 38 C.F.R. § 3.102.  More specifically, the March 2017 VA examination report reflects the examiner’s finding that the Veteran’s PTSD was manifested by difficulty adapting to stressful circumstances, including work or a work-like setting.  That symptom is listed in the criteria for a 70 percent rating.  See 38 C.F.R. § 4.130.  The examiner found occupational and social impairment corresponding to the criteria for a 30-percent rating.  See id. However, the February 2019 VA examiner found a level of occupational and social impairment corresponding to a 70 percent rating.  The February 2019 VA examination report is much more detailed than the March 2017 VA examination report, and provides a more thorough description of the Veteran’s occupational and social functioning, together with an explanation for the examiner’s finding.  It is thus more probative on this issue than the March 2017 examination report.  The February 2018 VA treatment record also describes significant symptoms, including nightmares most days of the week and hypervigilance.  Given the close proximity in time of the two VA examinations, which are less than two years apart, the Board finds it plausible that the level of occupational and social impairment determined by the February 2019 VA examiner is applicable to the earlier period.  

The AOJ assigned a 100-percent rating effective February 28, 2019, the date of the VA examination.  The Board find that the criteria for a 100-percent rating were not met or more nearly approximated prior to that date.  The Veteran did not have total occupational impairment, as he continued to work until October 2018.  He also did not have total social impairment, as he lived part-time with his girlfriend.  Moreover, neither the February 2019 VA examiner nor the March 2017 VA examiner found that the Veteran’s PTSD with alcohol use disorder caused total occupational and social impairment.  Moreover, the Veteran has not had symptoms matching or equivalent in frequency, duration, and severity to the symptoms listed for a 100 percent rating.  Rather, his symptoms have corresponded to the symptoms listed for a 70 percent rating or lower.  See 38 C.F.R. § 4.130.  To the extent his report of thinking that he “sees things,” as reflected in the September 2018 VA treatment record, can be considered a hallucination, such potential hallucinations are not shown to be persistent, or to have caused occupational or social impairment.  As explained above, the February 2019 VA examiner indicated that the Veteran had hallucinations, but the example cited occurred in nightmares, which is not a hallucination.  In an event, as the Veteran’s symptoms did not cause total occupational and social impairment prior to February 18, 2019, the criteria for a 100-percent rating were not met. 

In sum, a 70-percent rating, but no higher, is granted from August 9, 2016 to February 28, 2019.  Because the preponderance of the evidence weighs against a higher rating for that period, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Low Back Disability

 

The Veteran’s service-connected low back disability has been assigned a 20 percent rating.  For the following reasons, the Board finds that the criteria for a higher rating higher have not been met. 

A. Rating Criteria

The rating schedule provides for the evaluation of all disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243).  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.  The evaluation of IVDS will be discussed below.  Under the General Rating Formula, evaluations are assigned as follows:

A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. 

A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

A 40 percent rating is assigned forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  

A 50 percent rating is assigned unfavorable ankylosis of the entire thoracolumbar spine.  

A 100 percent rating is assigned where unfavorable ankylosis of the entire spine is demonstrated. 

Id.  

The above evaluations apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  Id.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2).  

Unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.”  Id., Note (5).  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id.

Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be separately evaluated under an appropriate diagnostic code.  Id. Note (1).  

B. Analysis

The April 2017 VA examination report reflects a diagnosis of intervertebral disc syndrome with degenerative arthritis.   The Veteran reported worsening symptoms including severe pain, tingling in his right leg, and burning down the right leg.  His back was being treated with epidural injections.  Flare-ups were described as sharp pain radiating down both legs, with numbness and burning in the right leg.  His reported functional impairment included difficulty with bending, prolonged standing, prolonged walking, sleeping, and lifting.  

On range-of-motion testing, forward flexion of the thoracolumbar spine was to 70 degrees.  Pain was exhibited with flexion and extension.  There was no additional loss of function or range of motion after three repetitions.  The examiner indicated that the examination was being performed during a flare-up.  However, this may have been an error, since when asked whether an estimate could be provided as to additional functional loss during flare-ups in terms of range of motion, the examiner checked the “no” box, stating that the Veteran indicated that the degree of limitation varies, and therefore such an estimate would require resort to mere speculation.  The examiner similarly declined to provide an estimate of additional loss of range of motion with repeated use over time, stating that such an estimate could not be provided without resort to mere speculation.  

On examination, there was localized tenderness not resulting in an abnormal gait or abnormal spinal contour.  There was no muscle spasm or guarding.  The Veteran did not have ankylosis of the spine.  Regarding functional impact, the examiner found that the Veteran had difficulty with lifting, prolonged walking, and prolonged standing. 

The February 2019 VA examination report reflects a diagnosis of intervertebral disc syndrome with degenerative arthritis.  In terms of current symptoms, the Veteran stated that his lower back pain comes and goes, and travels down both legs and to the feet.  He rated the pain as an 8 out of 10 on the pain scale.  He had been advised to undergo back surgery, which he was considering.  With regard to flare-ups, he stated he had flare-ups “all the time,” and these limited his movement.  With regard to functional impairment, he reported problems with bending, lifting, and sitting for a long period of time.  

On range-of-motion testing, forward flexion of the thoracolumbar spine was to 80 degrees.  Pain was exhibited in all planes of motion (flexion, extension, right and left lateral flexion, and right and left lateral rotation).  There was no additional loss of range of motion after three repetitions. The examiner estimated that with repeated use over time or during flare-ups, forward flexion would be limited to 40 degrees.  There was no guarding or muscle spasm of the spine on examination.   The Veteran did not have ankylosis of the spine.  Regarding functional impact, the examiner stated that the Veteran’s low back disability and bilateral radiculopathy limited his ability to bear weight, or sit or stand for long periods of time.  He walked with an antalgic gait. 

The preponderance of the evidence weighs against a rating higher than 20 percent for the Veteran’s low back disability under the General Rating Formula.  The examination reports show that forward flexion of the thoracolumbar spine has not been limited to 30 degrees or less, including after repetitive use testing.  The February 2019 VA examiner estimated that forward flexion would be further limited to 40 degrees during flare-ups or with repeated use over time.  Thus, when taking into account additional functional loss during flare-ups or with repeated use over time, the criteria for a rating higher than 20 percent based on limited range of motion remain unsatisfied, as the Veteran’s forward flexion would still exceed 30 degrees.  See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  

As noted, the April 2017 examiner declined to provide an estimate of additional loss of range of motion during flare-ups or with repeated use over time.  However, since the Veteran’s low back disability is not shown to have improved between the April 2017 examination and the February 2019 examination, with the Veteran reporting progressively worsening symptoms, it can be assumed that his forward flexion of the lumbar spine during flare-ups or with repeated use over time would be the same or better than the estimate provided by the February 2019 VA examiner.   The Board also notes that if the April 2017 VA examination was in fact performed during a flare-up as indicated in the examination report (although this may also have been a typographical error, for the reasons discussed), the Veteran’s forward flexion during that flare-up was to 70 degrees.  In short, the rating criteria for a 40 percent evaluation based on limited range of motion are not met.  See 38 C.F.R. § 4.71a, General Rating Formula.  

As the Veteran has not have ankylosis of the spine, the criteria for a rating of 40 percent or higher based on ankylosis are not met.  See 38 C.F.R. § 4.71a, General Rating Formula. 

With regard to associated neurologic abnormalities, service connection has been established for the Veteran’s right and left lower extremity radiculopathy, the evaluations of which are addressed further below. 

Under DC 5243, IVDS may be evaluated under the General Rating Formula, as discussed above, or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a.  For purposes of evaluations under diagnostic code 5243, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, DC 5243, Note (1). 

Here, and as found in the April 2017 and February 2019 VA examination reports, the record shows that the Veteran’s IVDS of the lumbar spine has not been manifested by episodes of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician during a 12-month period since the August 2016 date of claim.  Therefore, the criteria for a compensable rating under the Formula for Rating IVDS have not been met.  See id.

The Board notes that revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020).  The Board may consider these changes without remand  to the AOJ for consideration in the first instance.  See 38 C.F.R. § 20.904(d)(2).   

The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise.  VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit).  Thus, the changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date.  See id.; 85 Fed. Reg. 76453.

The Board finds that changes to DC’s 5242 and 5243, which clarify when these diagnostic codes apply, do not affect the outcome of this claim, as the Board has considered the evaluation of the Veteran’s lumbar spine disability under both the General Rating Formula and the Formula for Rating IVDS.  See 85 Fed. Reg. at 76462.  The Board finds no other changes relevant to the Veteran’s service-connected lumbar spine disability.  

As the preponderance of the evidence shows that the criteria for a rating higher than 20 percent for the Veteran’s low back disability have not been met, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

Radiculopathy of Bilateral Lower Extremities

The Veteran’s right lower extremity radiculopathy has been assigned a 20-percent rating effective August 9, 2016, and a 10-percent rating effective February 28, 2019.  His left lower extremity radiculopathy has been assigned a 10 percent rating effective August 9, 2016, and a 20 percent rating effective February 28, 2019.  For the following reasons, the Board finds that 20-percent ratings are warranted for each lower extremity throughout the period under review, and not just for portions of that period as currently assigned.  However, the criteria for ratings higher than 20 percent have not been met at any point during the pending of this claim. 

The Veteran’s radiculopathy has been rated under Diagnostic Code (DC) 8520, which pertains to disease of the sciatic nerve.  38 C.F.R. § 4.124a.  Under DC 8520, a 10 percent evaluation is assigned for mild incomplete paralysis; a 20 percent evaluation is assigned for moderate incomplete paralysis; a 40 percent evaluation is assigned for moderately severe incomplete paralysis; and a 60 percent evaluation is assigned for severe incomplete paralysis with marked muscular atrophy. Id.  A maximum 80 percent evaluation requires complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  38 C.F.R. § 4.124a.

The term “incomplete paralysis,” with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a; Note prefacing DC’s 8510 through 8730.

The April 2017 VA back examination report reflects that symptoms of the Veteran’s right lower extremity radiculopathy consisted of mild constant pain that may be excruciating at times; moderate intermittent pain that was usually dull; moderate paresthesias and/or dysesthesias, and moderate numbness.  Symptoms of his left lower extremity radiculopathy consisted of mild constant pain that may be excruciating at times; moderate intermittent pain that was usually dull; mild paresthesias and/or dysesthesias, and mild numbness.  Muscle strength testing of the right lower extremity showed normal (5/5) strength.  Muscle strength testing of the left lower extremity was normal except with respect to knee extension, which was diminished to 4/5 (active movement against some resistance).  The Veteran did not have muscle atrophy.  A reflex examination was normal (2+) for the knees and ankles bilaterally.  A sensory examination was normal for the upper anterior thigh, and the thigh/knee, but decreased for the lower leg/ankle and foot/toes of the right and left lower extremities.  A straight leg raising test was positive bilaterally.  The examiner found that the nerve impairment involved the sciatic nerve.   The examiner characterized the right lower extremity radiculopathy as moderate, and the left lower extremity radiculopathy as mild. 

The February 2019 VA examination report reflects that symptoms of the Veteran’s right lower extremity radiculopathy consisted of mild intermittent pain that was usually dull, mild paresthesias and/or dysesthesias, and no numbness.  The Veteran’s left lower extremity radiculopathy symptoms consisted of mild intermittent pain that was usually dull, moderate paresthesias and/or dysesthesias, and moderate numbness.  Muscle strength testing was normal (5/5) for both lower extremities.  There was no atrophy.  Reflex examination of the right lower extremity was normal (2+) with regard to the knee, and hyperactive without clonus (3+) with regard to the ankle.  Reflex examination of the left lower extremity was normal for the knee (2+) and absent (0) for the ankle.  A sensory examination showed normal sensation in both lower extremities.  Straight leg testing was negative for both lower extremities.  The examiner found mild incomplete paralysis of the sciatic nerve with respect to the right lower extremity, and moderate incomplete paralysis of the sciatic nerve with respect to the left lower extremity.  

With regard to the right lower extremity radiculopathy, the Board finds that the criteria for a rating higher than 20 percent were not met prior to February 28, 2019.  The April 2017 VA examination report shows mild to moderate subjective symptoms, normal strength, and normal reflexes.  The Veteran had decreased but not absent sensation in the lower leg/ankle and foot/toes.  The rating schedule instructs that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a; Note prefacing DC’s 8510 through 8730.  Accordingly, as the Veteran had mild to moderate subjective symptoms of the right lower extremity, and as the involvement was wholly sensory, with normal muscle strength and reflexes, the criteria for a rating of 40 percent for moderately severe incomplete paralysis were not satisfied or more nearly approximated.  See 38 C.F.R. § 4.124a, DC 8520.  For the same reason, the criteria for a 60 percent rating for severe incomplete paralysis were not satisfied, and the evidence shows that the Veteran has not had muscular atrophy of the right lower extremity, which is also required for that evaluation.  See id.  Finally, the Veteran’s right lower extremity radiculopathy was not manifested by complete paralysis.  See id.

The October 2020 rating decision decreased the evaluation of the Veteran’s right lower extremity radiculopathy from 20-percent to 10-percent as of February 28, 2019, the date of the VA examination.  Presumably, the reduction was based on the examiner’s characterization of the radiculopathy as mild.  The Board finds that the 20-percent rating should be continued.  The evidence does not show consistently improving right lower extremity symptoms.  Moreover, with the exception of the absent left ankle reflex—the significance of which was not remarked on by the examiner—the examination findings were essentially the same for both lower extremities, yet the examiner characterized the right lower extremity radiculopathy as mild, and the left lower extremity as moderate.  The Veteran’s reported subjective symptoms for the left lower extremity at this examination, such as moderate paresthesias and numbness, were more significant compared to the right lower extremity, but that alone should not be a basis for reducing the rating.  

Significantly, the February 2019 examination was conducted less than two years after the April 2017 examination.  VA regulation provides that “[i]t is the responsibility of the rating specialist to interpret reports of examination in the 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 present.”  See 38 C.F.R. § 4.2.  Given the close proximity in time of the two examinations, and the fact that the record does not otherwise show sustained improvement of the Veteran’s right lower extremity radiculopathy, and as the February 2019 VA examiner’s characterization of the radiculopathy as mild or moderate seems to have been largely based on how the Veteran reported subjective symptoms at the time, the Board finds that the rating of 20 percent should be continued.  For the reasons discussed above with regard to the period prior to February 28, 2019, the criteria for a rating higher than 20 percent have not been met. 

With regard to the left lower extremity, the Board finds that for the period prior to February 28, 2019, a 20-percent rating is warranted.  In this regard, the April 2017 examination report shows that the Veteran’s subjective symptoms included moderate intermittent pain, and mild paresthesias and numbness of the left lower extremity; the examiner found decreased muscle strength (4/5) with respect to left knee extension and decreased sensation of the ankle and foot/toes on sensory examination.   Notwithstanding the examiner’s characterization of the left lower extremity radiculopathy as mild, the Board finds that it more nearly approximated the criteria for a 20 percent rating for moderate incomplete paralysis.  See 38 C.F.R. § 4.124a, DC 8520.  

For the reasons discussed above with respect to the right lower extremity, the Veteran’s left lower extremity radiculopathy has not met or more nearly approximated the criteria for moderately severe or severe incomplete paralysis.  The Veteran has reported mild to moderate symptoms of the left lower extremity radiculopathy.  The April 2017 examination report showed mostly normal strength with respect to the left lower extremity in all segments except the left knee, which was only slightly diminished (4/5).  A reflex examination was normal.  The February 2019 VA examination showed normal strength in all segments and a normal sensory examination.  Accordingly, the criteria for a 40-percent rating for moderately severe incomplete paralysis were not satisfied or more nearly approximated.  See 38 C.F.R. § 4.124a, DC 8520.  For the same reasons, the criteria for a 60 percent rating for severe incomplete paralysis were not satisfied, and the evidence shows that the Veteran has not had muscular atrophy of the left lower extremity, which is also required for that rating.  See id.  Finally, the Veteran’s left lower extremity radiculopathy was not manifested by complete paralysis.  See id.

At the November 2018 Board hearing, the Veteran’s representative stated that the VA Disability Benefits Questionnaire, which is the format for the examination reports, was not adequate to rate radiculopathy as it did not provide an option for “moderately severe” incomplete paralysis for the examiner to consider.  For the reasons discussed above, the substantive findings in terms of the Veteran’s symptoms and the testing results (i.e. muscle strength, reflex, sensory, etc.) show that the criteria for moderately severe incomplete paralysis have not been met, regardless of how the examiner may have characterized it.  Of course, to the extent the examiners checked the boxes for mild rather than moderate incomplete paralysis, it is obvious as a matter of logic that they would not have checked the box for “moderately severe” incomplete paralysis, had that option been presented in the questionnaire.  

In sum, a 20-percent rating for right lower extremity radiculopathy is granted effective February 28, 2019.  The criteria for a rating higher than 20 percent have not been met during the period under review.  A 20-percent rating for left lower extremity radiculopathy is granted effective August 9, 2016, the date of claim.  The criteria for a rating higher than 20 percent have not been met during the period under review.  Because the preponderance of the evidence weighs against higher ratings, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Knee Disabilities 

The Veteran’s left knee disability has been assigned a rating of 20 percent for instability, a separate rating of 10 percent for limitation of flexion, and a separate rating of 0 percent effective January 24, 2019 for limitation of extension.  The Veteran’s right knee disability has been assigned a 10 percent rating for limitation of flexion, and a separate 10 percent rating effective April 25, 2017 for instability.  

For the following reasons, the Board finds that an effective date of August 9, 2016 is warranted for the 10-percent rating for the Veteran’s right knee instability, and that a separate 10-percent rating is warranted for limitation of extension of the left knee effective January 24, 2019.  Otherwise, the Board finds that the criteria for ratings higher than those currently assigned have not been met, and that other diagnostic codes pertaining to the knee do not apply. 

Under DC 5260, a 0 percent rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees.  38 C.F.R. § 4.1a. 

Under DC 5261, a 0 percent rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 15 degrees; a 30 percent rating is assigned for extension limited to 20 degrees; a 40 percent rating is assigned for extension limited to 30 degrees; and a 50 percent rating is assigned for extension limited to 45 degrees.  Id.

Normal range of motion of the knee is defined as flexion to 140 degrees and extension to 0 degrees.  38 C.F.R. § 4.71a, Plate II.

Separate ratings may be assigned under DC’s 5260 and 5261 for limitation of flexion and limitation of extension of the same joint.  VAOPGCPREC 9-2004 (Sept. 17, 2004).

Diagnostic Code 5257 pertains to “other impairment” of the knee, with recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a.  Under DC 5257, a 10-percent rating is assigned when such impairment is slight; a 20-percent rating is assigned when such impairment is moderate; and a 30-percent rating is assigned when such impairment is severe.

The April 2017 VA examination report reflects diagnoses of instability and generative arthritis of the right knee, and instability of the left knee associated with postoperative status, left knee injury with degenerative changes.  The Veteran related having constant pain, inflammation, and swelling of the left knee.  It also gave out while going up and down steps.  Regarding the right knee, he reported pain and instability.  He described flare-ups of right knee symptoms as swelling, pain, and giving way.  He stated he sometimes was in so much pain he was unable to sleep.  Flare-ups of left knee symptoms were described as pain and giving way.  Regarding functional loss, he stated he had difficulty going up and down stairs, and with prolonged walking or standing.  On range-of-motion testing, flexion of both knees was to 100 degrees, and extension to 0 degrees, with pain exhibited in both flexion and extension.  There was no additional loss of range of motion after at least three repetitions of range-of-motion testing.  

The examiner indicated that the examination was not being performed during a flare-up or with repeated use of the knees over time, but found that pain would significantly limit functional ability during flare-ups or with repeated use over time.  The examiner declined to provide an estimate of additional range of motion loss during flare-ups or with repeated use over time, stating that the Veteran indicated that the degree of limitation varies, and therefore that an estimate would require resorting to speculation.  

In addition to pain and loss of range of motion, the examiner found that the Veteran’s right knee disability was manifested by instability of station.  On muscle strength testing, the right knee had normal (5/5) strength in flexion and extension.  The left knee had reduced (4/5) strength in flexion and extension.  The examiner attributed the reduced strength to the Veteran’s knee condition.  

Stability testing was also performed.  With regard to the right knee, anterior instability, posterior instability, and lateral instability tests were all normal.  A medial instability test showed instability of 1+ (0-5 millimeters).  With regard to the left knee, testing for anterior instability, posterior, instability, and lateral instability was normal.  A medial instability test showed instability of 1+ 0-5 millimeters).  The examiner indicated that there was not a history of recurrent subluxation or lateral instability.  

With regard to meniscal conditions, the examiner indicated that the Veteran had a history of a meniscal tear with frequent episode of joint pain for the left knee, and no current symptoms for the right knee.  In this regard, the Veteran underwent arthroscopy and meniscectomy of the left knee in 1988.  The Veteran regularly wore a left knee brace.  With regard to the functional impact of the Veteran’s bilateral knee disabilities, the examiner stated that they limited bending, prolonged walking, prolonged standing, and climbing stairs.

The January 2019 VA examination report reflects that the Veteran related similar knee symptoms.  On range-of-motion testing, right knee flexion was to 120 degrees and extension to 0 degrees.  There was no additional loss of range of motion after at least three repetitions of range-of-motion testing.   Left knee flexion was to 95 degrees, and extension to 5 degrees.  On repetitive use testing, left knee flexion was further limited to 90 degrees; extension continued to be to 5 degrees.  The examiner stated that the limited range of motion of both knees caused difficulty with prolonged walking, sitting, ascending and descending stairs, lifting, and bending.  The examiner indicated that pain of the right knee, and pain and weakness of the left knee, would significantly limit functional ability with flare-ups and repeated use over time.  However, the examiner found that an estimate of additional loss of range of motion could not be provided as the range of motion would vary depending on the activities performed and the severity of the flare-up.  

On muscle strength testing, the right knee had normal (5/5) strength in flexion and extension.  The left knee had reduced (4/5) strength in flexion and extension.  The examiner attributed the reduced strength to the Veteran’s knee condition. 

Joint stability testing of the right knee was normal.  With regard to the left knee, testing for posterior instability and lateral instability was normal.  Anterior and medial instability tests each showed 1+ instability (0-5 millimeters).  The examiner indicated that there was not a history of recurrent subluxation or lateral instability for either knee.  The examiner noted a history of recurrent effusion or swelling of the left knee. 

Regarding meniscal conditions, the examiner found that residual signs of the left knee left knee meniscectomy performed in 1988 consisted of pain and instability.  

With regard to functional impact, the examiner stated that the Veteran would have difficulty with prolonged walking, sitting, ascending and descending stairs, lifting, and bending. 

 

The February 2019 VA examination report reflects that the Veteran related constant left knee throbbing pain that was an 8 out of 10 in severity during the day, and a 10/10 in severity at night.  He also reported knee buckling resulting in falling several times over an eighteen-month period.  He stated that flare-ups of left knee pain occur with long periods of walking (climbing hills and steps) while delivering mail.  The flare-ups occurred two to three times per month, lasted three to four days, and were described as a throbbing pain that was a 10/10 in severity.  The Veteran stated he was unable to run, exercise, or take long walks.  On range-of-motion testing, flexion of the right knee was from 0 to 140 degrees, and extension to 0 degrees.  There was no additional loss of range of motion after at least three repetitions of range-of-motion testing.  Flexion of the left knee was to 70 degrees, and extension to 5 degrees.  There was no additional loss of range of motion after at least three repetitions of range-of-motion testing.  The examiner stated that an estimate of additional range of motion loss during flare-ups or with repeated use over time could not be provided without resort to mere speculation.  

On muscle strength testing, the right knee had normal (5/5) strength in flexion and extension.  The left knee had reduced (4/5) strength in flexion and extension.  The examiner attributed the reduced strength to the Veteran’s knee condition. 

Joint stability testing of the both knees was normal.  The examiner indicated that there was not a history of recurrent subluxation or lateral instability for either knee.  However, there was a history of recurrent effusion of the left knee due to residuals of a meniscus tear.  

Regarding meniscal conditions, the examiner found that there were no current symptoms with respect to the right knee.  The examiner indicated that the left knee had frequent episodes of joint “locking,” frequent episodes of joint pain, and frequent episodes of joint effusion.  The examiner described these findings as “[o]ngoing swelling, joint pain resulting in knee locking causing falls.”  

The examiner stated that the Veteran constantly used a brace and cane as assistive devices due to left knee instability.  

Another VA examination was performed in late February 2019.  The examination report reflects that with regard to the right knee, the Veteran reported that the pain comes and goes, and rated it as a 5 out of 10.  The left knee pain was constant.  It swelled and became sore.  The pain was rated as an out of 10.  The Veteran had flare-ups of left knee pain lasting the whole day, and flare-ups of right knee pain lasting for an hour or two.  The flare-ups were characterized by limited range of motion, and painful movement with swelling around the knees.  Regarding functional impairment, the Veteran stated that it hurt to walk, stand for long periods of time, and that it was difficult to squat.  On range-of-motion testing, flexion of the right knee was to 115 degrees, and extension to 0 degrees.  Pain was noted on both flexion and extension.  Flexion of the left knee was to 90 degrees, and extension to 10 degrees.  Pain was noted on both flexion and extension.  There was no additional loss of range of motion in either knee after repetitive use testing.  The examiner indicated that pain would cause additional functional loss with repetitive use over time and during flare-ups, and estimated that flexion of the right knee would be further limited to 80 degrees, and extension would continue to be to 0 degrees.  For the left knee, the examiner estimated that flexion would be limited to 80 degrees, and extension continue to be to 10 degrees.  

The Veteran had normal (5/5) strength on muscle strength testing in flexion and extension for both knees.  Stability testing of the right knee showed 1+ instability (0-5 millimeters) on anterior instability testing; the other tests were normal.  Anterior instability and posterior instability tests of the left knee were normal.  The examiner was unable to perform medial instability and lateral instability tests because the Veteran could not bend his knee significantly due to pain.  Regarding functional impact, the examiner stated that the Veteran’s knee conditions limited his ability to walk for long periods of time, walk up or down stairs, and maintain a normal gait. 

An April 2019 VA treatment record reflects that the Veteran was seen for a surgical consultation for his left knee condition.  He reported chronic pain associated with most activities, such as prolonged sitting, kneeling, using stairs, and traveling by car.  He received significant relief with rest in extension.  Corticosteroid injections provided some relief.  On examination, both knees had normal general appearance and contour.  There was no edema.  Range of motion of both knees was from 0 degrees to 120 degrees, with 5/5 strength.  There was no laxity.  There were no meniscal signs.  The examiner noted that an x-ray study showed mild to moderate osteoarthritis changes.  Surgery was not advised at this time.  The Veteran was advised to use a cane and brace as needed and to avoid prolonged flexion of the knee.  Medication and supplementation (i.e. Omega 3 and glucosamine/chondroitin) was also suggested. 

Recent VA treatment records show that the Veteran has received viscosupplementation injections for left knee pain.  See October 2020 VA Treatment Record. 

In a November 2020 opinion, the VA examiner reconciled the conflicting stability test results with regard to the right knee in the VA examinations reviewed above.  The examiner stated that the April 2017 VA examination report showed grade 1 medial and lateral instability.  The Board here notes that, in fact, the April 2017 examination report shows that the lateral instability test was normal.  The examiner further observed that the January 2019 VA examination report showed no right knee instability, that the February 28, 2019 VA examination report showed grade 1 anterior instability, and the February 8, 2019 examination report showed grade 1 medial instability.  The examiner found that none of the examination reports showed symptomatic subluxation or significant mediolateral instability.  The examiner stated that grade 1 instability can be considered nonclinical, and generally does not lead to subluxation or lateral instability.  The examiner concluded that it is at least as likely as not that the Veteran does have some very mild anterior and medial instability of the right knee.  

The Board notes that the November 2020 VA medical opinion was obtained after the most recent Supplemental Statement of the Case (SSOC), which was issued in October 2020.  It is not clear why that opinion was requested, as service connection for instability of the Veteran’s right knee has already been granted.  As the opinion is essentially redundant of earlier evidence establishing right knee instability, and does not provide support for a higher rating but simply confirms that the Veteran has instability of the right knee, the Board finds no prejudice to the claim in proceeding with appellate review at this juncture, even though there has been no subsequent readjudication of the claim by the AOJ.  

Based on the above evidence, the Board finds that an effective date of August 9, 2016, which is the date of claim, is warranted for the 10-percent rating for the Veteran’s right knee instability.  The effective date of April 10, 2017 is based on the findings in the VA examination conducted on that date.  As the evidence consistently shows right knee instability, as confirmed by the November 2020 VA medical opinion, the Board assumes that the Veteran’s right knee instability was present at the time of the August 9, 2016 intent to file, there being no evidence to the contrary. 

The Board also finds that the criteria for a separate 10-percent rating for limitation of extension of the left knee are met effective January 24, 2019.  See 38 C.F.R. § 4.71a, DC 5261.  In this regard, the February 2019 VA examination report shows extension of the left knee limited to 10 degrees, which satisfies the criteria for a 10 percent rating under DC 5261.  Id.  While the January 2019 VA examination report shows extension limited to 5 degrees, for which a 0 percent rating is assigned, the examiner did not provide an estimate of additional loss of range of motion during flare-ups or with repeated use over time.  Given the close proximity in time of the two examinations, the Board finds that the estimate provided in the February 2019 examination report can be applied to the time of the January 2019 examination report, which shows worsening symptoms and extension limited to 5 degrees (whereas earlier the Veteran had full extension of the left knee).  As the evidence does not show limited extension prior to that time, an effective date earlier than January 24, 2019 for the separate 10-percent rating for limited extension is not warranted. 

The Board finds that higher or separate ratings are not warranted for either knee.   With regard to flexion and extension, the VA examination reports show that the criteria for higher ratings under DC’s 5260 and 5261 were not satisfied, including after repetitive testing.  The estimate provided in the VA examination report dated in late February 2019 regarding additional loss of flexion during flare-ups or after repeated use of the knee over time shows that the criteria for a higher rating under DC 5260 would still not be satisfied, as flexion of both knees would be to 80 degrees.  Thus, a higher rating based on limited flexion cannot be assigned under the DeLuca criteria.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  While earlier VA examination reports do not contain estimates of additional range-of-motion loss during flare-ups or with repeated use over time, as the Veteran’s bilateral knee disabilities have progressively worsened over the years, the Board assumes that any such estimate would not show further limitation of flexion than what was estimated in the second February 2019 VA examination report.  

With regard to limitation of extension, the evidence shows that the Veteran had painful but not limited extension of either knee prior to January 2019, including after repetitive testing, as shown in the April 2017 VA examination.  Therefore, the Board finds that the estimates provided in the February 2019 VA examination report do not apply to the period prior to January 24, 2019.  Indeed, with regard to the right knee, the February 2019 examiner estimated that extension would still be to 0 degrees during flare-ups and with repeated use over time.  Thus, a higher rating based on limited extension under the DeLuca criteria is not met for either knee.  The estimate of extension of the left knee during flare-ups or with repeated use over time provided in the February 2019 examination report does not satisfy the criteria for a higher rating for the period since January 24, 2019, when a separate 10-percent rating has been assigned for such limitation under DC 5261.  The Board notes that the April 2019 VA surgical consultation record shows that extension of the left knee was to 0 degrees, and that the Veteran reported experiencing significant relief when his knee was resting in extension.   

Regarding instability, the evidence does not show more than moderate instability of the left knee, or more than mild instability of the right knee.  In this regard, the VA examination reports show that most stability tests of both knees were normal; those that were abnormal showed 1+ instability.  The evidence does not show more severe instability of either knee.  The Veteran has reported occasional giving way of the knee, but has not attributed that to instability; rather, the evidence indicates that his painful and weakened motion of the knees may have been the cause of the giving way.  Moreover, such giving way in itself is not  incompatible with mild or moderate instability.  The April 2019 VA surgical consultation record shows that the Veteran reported chronic pain, but did not report instability.  On examination, there was no laxity.  He was advised to wear a brace and use a cane to avoid prolonged flexion of the left knee, rather than due to instability.  Accordingly, the criteria for a rating higher than 20 percent for moderate instability of the left knee, and a rating higher than 10 percent for mild instability of the right knee, have not been met under DC 5257.  

The Board finds that separate ratings are not warranted under any other diagnostic code applicable to the knee, for the reasons set forth in the following discussion.  

The evaluation of knee disability under DC 5257 or 5261 does not preclude, as a matter of law, separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259.  Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017).  Under DC 5258, a 20-percent rating is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint.  38 C.F.R. § 4.71a.  The evidence shows that that the Veteran has not had a dislocated semilunar cartilage of either knee, which is the basis for the assignment of a rating under DC 5258; therefore, the Board finds that the criteria for a separate rating under DC 5258 are not satisfied.  The Veteran’s knee pain is already contemplated by the ratings assigned based on limitation of motion.  With regard to the Veteran’s reports of swelling of the left knee, the Board finds that this does not constitute a discrete disability warranting a separate rating, as it is not shown to cause functional impairment distinct from that caused by the pain, limited motion, and instability already compensated by the ratings assigned under DC’s 5257 and 5260.  To the extent the swelling may contribute to that functional impairment, it is already contemplated by these ratings. 

The Board is aware that the February 2019 VA examiner stated that the left knee had frequent episodes of joint “locking,” frequent episodes of joint pain, and frequent episodes of joint effusion.  The examiner described these findings as “[o]ngoing swelling, joint pain resulting in knee locking causing falls.”  However, apart from that statement, the evidence does not show locking of the knee.  Moreover, as explained above, in order for DC 5258 to apply, the evidence must show dislocated semilunar cartilage.  The Veteran’s painful and limited motion of the left knee, and instability, are contemplated by the ratings assigned under DC’s 5260, 5261, and 5257.  To assign a separate rating under DC 5258 under these circumstances would amount to compensating twice for the same manifestations, which constitutes impermissible pyramiding.  See 38 C.F.R. § 4.14. 

Under DC 5259, a 10-percent rating is assigned for removal of semilunar cartilage that is symptomatic.  See 38 C.F.R. §  4.71a.  The Veteran does not have a history of cartilage removal of the right knee.  He underwent a meniscectomy of the left knee in 1988.  The evidence does not residuals of the meniscectomy distinct from the painful motion and instability contemplated by the ratings assigned under DC’s 5260, 5261, and 5257.  See January 2019 VA examination report.  The April 2019 VA surgical consultation record reflects a finding that there were no meniscal signs in either knee.  

The record shows that the Veteran has not had ankylosis of either knee, impairment of the tibia and fibula with nonunion or malunion, or genu recurvatum.  Thus, DC’s 5256, 5262, and 5263, which pertain to these conditions, respectively, do not apply.  See 38 C.F.R. § 4.71a. 

The VA examination reports also show findings of leg length discrepancy.  The evaluation of the Veteran’s leg length discrepancy is the subject of a separate appeal, for which the Veteran has requested a Board hearing.  See October 2019 SOC; November 2019 VA Form 9. 

As noted above, revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021.  See 85 Fed. Reg. 76453.  The Board may consider these changes without remand to the AOJ for consideration in the first instance.  See 38 C.F.R. § 20.904(d)(2).   

The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise.  VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit).  Thus, the changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date.  See id.; 85 Fed. Reg. 76453.

The revised rating criteria include substantial changes to DC 5257.  See 85 Fed. Reg. at 76463.  The Board finds that higher ratings based on instability under the revised rating criteria are not warranted for either knee.  

New DC 5257 provides, in pertinent part, that for recurrent subluxation or instability, a 20-percent rating is assigned for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g. cane(s), crutch(es), walker) for ambulation; (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g. cane(s), crutch(es), walker) or bracing for ambulation.  Id.  A 30-percent rating is assigned for recurrent subluxation or instability when there is an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g. cane(s), crutch(es), walker) and bracing for ambulation.  Id.

Alternatively, new DC 5257 provides, in pertinent part, that for patellar instability, a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker.  Id.  A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.  Id.

For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.  Id. Note (1).  A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).  Id., Note (2).  

Here, with regard to the right knee, the Veteran has not undergone surgical repair or been prescribed a brace, cane, crutches, or walker by a medical provider.  Thus, the criteria for a rating higher than 10 percent under new DC 5257, whether based on recurrent subluxation or instability, or patellar instability, have not been met. 

With regard to the left knee, the criteria for a 30 percent rating for recurrent subluxation or instability are not met under new DC 5257, as the evidence shows that the Veteran does not have an unrepaired or failed repair of a complete ligament tear.  The criteria for a 30 percent rating for patellar instability are also not met, as the evidence does not show a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair for which he has been prescribed a brace and either a cane or walker.    

Additional changes to the rating schedule applicable to the knees are not relevant to the Veteran’s knee disabilities.  See 85 Fed. Reg. at 76463.

Because the preponderance of the evidence weighs against higher ratings for the Veteran’s bilateral knee disabilities, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.  

 

REASONS FOR REMAND

1. Entitlement to service connection for cataracts is remanded. 

The Board finds that a new VA medical opinion is warranted on the issue of service connection for cataracts.  The Veteran’s March 1975 enlistment examination report reflects a normal clinical evaluation of his eyes.  Cataracts were not noted.  The service treatment records show that in November 1978, during an optometry consultation, the Veteran was found to have bilateral post-polar and cortical cataracts.  A March 1987 service optometry record lists a diagnosis of post cortical cataracts “noted back to 1978” and which were “probably congenital.”  

Because the Veteran’s cataracts were not noted at entry, the presumption of soundness applies.  See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).  

The VA optometry treatment records show diagnoses of bilateral nuclear sclerotic cataracts during the pendency of this claim.  See June 2015 VA Treatment Record.  The VA treatment records also generally list a diagnosis of cortical senile cataracts.  It is not apparent whether this diagnosis represents a condition distinct from the diagnosis of nuclear sclerotic cataracts.  The Veteran underwent cataract surgery in 2017, and has a current diagnosis of bilateral pseudophakia as a residual of that surgery.  

In the November 2019 VA medical opinion, the examiner opined that the Veteran’s current eye conditions were less likely than not related to his in-service eye conditions.  With regard to the in-service cataracts, the examiner stated that the Veteran was noted to have cortical cataracts in 1978, but that these were developmental spokes that the Veteran “entered the military with.”  The examiner made no other comment respecting the Veteran’s cataracts. 

The November 2019 VA medical opinion is not adequate to make an informed decision, as it does not comport with the presumption of soundness.  When the presumption of soundness applies, it can only be rebutted by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service.  38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Accordingly, on remand, a new medical opinion must be obtained as to whether the clear and unmistakable evidence shows that the Veteran’s in-service cortical cataracts existed prior to service and were not aggravated by service.  

The examiner should also state whether the cortical cataracts noted in service could improve or worsen.  In this regard, the mere fact that a disorder is congenital or hereditary in origin does not preclude service connection.  O’Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014).  However, congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes.   38 C.F.R. §§ 3.303(c), 4.9; O’Bryan, 771 F.3d at 1380.   The issue, then, is whether the Veteran’s in-service cortical cataracts are considered a “defect” or a “disease,” as these terms are defined by law.  Congenital defects are by definition static in nature.  O’Bryan, 771 F.3d at 1380.  By contrast, congenital diseases are progressive in nature, and as such are capable of improvement or deterioration.   Id.

Regardless of what the examiner finds as to the above issues, the examiner must render an opinion as to the likelihood that the in-service cortical cataracts are linked to the bilateral nuclear sclerotic cataracts and/or cortical senile cataracts diagnosed and surgically removed during the pendency of this claim.  

2. Entitlement to service connection for obstructive sleep apnea is remanded.

The Veteran claims service connection for obstructive sleep apnea, in part, as secondary to his service-connected PTSD.  See 38 C.F.R. § 3.310 (providing for service connection on a secondary basis).  In the November 2019 VA medical opinion, the examiner stated that the Veteran’s sleep apnea was less likely than not caused by PTSD because, although there is evidence of co-occurrence of these conditions, the medical record did not support a finding that PTSD causes sleep apnea.  However, the examiner found it at least as likely as not that the Veteran’s PTSD aggravated his sleep apnea, and provided the same rationale that was used in support of the opinion finding against causation, stating: “Among veterans with PTSD, studies show that sleep disturbances go beyond the hyperarousal symptoms that is part of the clinical picture of PTSD and include co-occurring sleep disturbance such as [obstructive sleep apnea, etc.].”  The examiner did not explain why such co-occurrence supported an increase in severity of the Veteran’s obstructive sleep apnea beyond a medically established baseline proximately caused by PTSD.  It is also unclear why the same rationale used in support of a finding against causation would support a finding of aggravation.  The Board notes that chronic sleep impairment is already factored into the evaluation of the Veteran’s psychiatric disorder.  See 38 C.F.R. § 4.130, General Rating Formula.  

Accordingly, a new opinion must be obtained as to the likelihood that the Veteran’s PTSD has caused or aggravated his obstructive sleep apnea, supported by an adequate explanation. 

3.  Entitlement to TDIU prior to February 28, 2019 is remanded. 

The Veteran discontinued working on October 31, 2018, as shown in his January 2019 application for TDIU (VA Form 21-8940) and his Social Security Administration (SSA) records.  A 100 percent rating has been assigned his service-connected psychiatric disorder effective February 28, 2019.  The issue is whether the criteria for TDIU are satisfied from November 2018 to February 2019.  The  grants of higher ratings in this decision may have resulted in a combined 100 percent rating for that period.  See 38 C.F.R. 4.25 (combined ratings table).  In that case, the issue of entitlement to TDIU for that period would also be moot.  See Vettese v. Brown, 7 Vet App. 31 (1994).  If, after processing the grants in this decision, the combined rating of the Veteran’s service-connected disabilities is less than 100 percent from November 2018 to February 2019, the AOJ should readjudicate the issue of entitlement to TDIU for that period.  

The matters are REMANDED for the following action:

1. Obtain a new VA medical opinion regarding service connection for cataracts, as specified below.

The examiner is asked to provide the following opinions: 

(a.) Whether the clear and unmistakable evidence shows that the Veteran’s in-service cortical cataracts both pre-existed active service and were not aggravated by service.  In rendering the opinion, the examiner should also state whether the cataracts were capable of change, i.e. improvement or deterioration, or were static in nature. 

(b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s in-service cataracts are related to the cataracts diagnosed and surgically removed during the pendency of this claim (nuclear sclerotic cataracts and/or cortical senile cataracts).  

The examiner must provide complete explanations in support of the conclusions reached. 

2. Obtain a new VA medical opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s service-connected PTSD with major depressive disorder caused or aggravated his obstructive sleep apnea.  The fact that there may be a correlation between the two conditions does not, in itself, support either causation or aggravation.  The examiner must provide a specific explanation in support of the conclusion reached, preferably with discussion of the medical principles involved.  The examiner is advised that chronic sleep impairment is already factored into the evaluation of the Veteran’s psychiatric disorder.  

3. If, after processing the Board’s grants of higher ratings in this decision, the combined evaluation of the Veteran’s service-connected disabilities for the period between November 1, 2018 and February 28, 2019 is less than 100 percent, the issue of entitlement to TDIU for that period should be readjudicated. 

 

 

P.M. DILORENZO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Rutkin, 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.