Citation Nr: 21008493 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 19-06 733 DATE: February 17, 2021 ORDER Entitlement to an increased rating in excess of 10 percent disabling for left knee strain is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is remanded. FINDING OF FACT The Veteran’s left knee strain was manifested by noncompensable levels of limited flexion; there was no ankylosis, recurrent subluxation or lateral instability, limitation of extension, impairment of the tibia/fibula, or genu recurvatum. CONCLUSION OF LAW The criteria for a disability rating higher than 10 percent for left knee strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DCs) 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1965 to July 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from the March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). While the Veteran requested a Board hearing in his Form 9, the Veteran’s representative submitted a statement in January 2021 explaining that the Veteran wishes to withdraw his request for the hearing. As such, the case is properly before the Board for adjudication. 1. Entitlement to an increased rating in excess of 10 percent disabling for left knee strain Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In March 2016, the Veteran was granted service connection for left knee strain with a 10 percent evaluation effective November 16, 2015. The Veteran timely appealed the grant of service connection with a 10 percent disability rating. In March 2019, the Veteran was granted a 10 percent disability rating for left knee cartilage semilunar removal of with an effective date of November 16, 2015. Under 38 C.F.R. § 4.71a, DC 5257 covers “other impairment of the knee,” and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. The terms “mild,” “moderate,” “moderately severe” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under DC 5260 where flexion is limited to 45 degrees, a 10 percent rating is assigned. When flexion is limited to 30 degrees, a 20 percent rating is assigned; and when flexion is limited to 15 degrees, a 30 percent rating is assigned. 38 C.F.R. § 4.71a. Separate ratings may be assigned for disability of the same joint under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg). See VAOPGCPREC 9-04. Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Under DC 5261, where extension is limited to 10 degrees, a 10 percent rating is assigned. When extension is limited to 15 degrees, a 20 percent rating is assigned; when limited to 20 degrees, a 30 percent disabling is assigned; when limited to 30 degrees, a 40 percent rating is assigned and when extension is limited to 45 degrees, a 50 percent rating is assigned. Id. Normal range of motion in the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Evidence relevant to the severity of the Veteran’s service-connected knee disabilities include VA treatment records describing the pain and symptoms that the Veteran experiences due to his knee disabilities. These treatment records do not provide range of motion (ROM) measurements. In the February 2016 VA examination the Veteran was diagnosed with a left knee strain and with left knee joint osteoarthritis. The Veteran reported that the disability has gotten worse over the course of the years and that he has had two surgeries which has caused cracking, collapsing, and locking up in the joints. He reported always having pain. He reported that the flare ups of the left knee include cracking sounds and locking until he stops walking. He then has to move his knee back and forth to get it back to normal. Initial range of motion (ROM) measurements reflect that the veteran has flexion from zero to 120 degrees and extension 120 to zero degrees. The examiner noted that the ROM itself did not contribute to a functional loss and that pain was noted with flexion and extension but did not result in a functional loss. There was pain with weight bearing but no localized tenderness or pain on palpation of the joint. There was also evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, but there was no loss of function or ROM. The Veteran was not examined immediately after repetitive use over time or during a flare up, but the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and with flare ups. The examiner reported that pain and weakness significantly limited the Veteran’s functional ability with repeated use over a period of time and with flare ups. The examiner was unable to describe the functional loss in terms of ROM since the Veteran was not tested after repetitive use over time or after a flare up. The Veteran had normal muscle strength and did not have muscle atrophy. The examiner reported that the Veteran did not have ankylosis, a history of recurrent subluxation, or a history of lateral instability. The Veteran did have a history of recurrent effusion in the left knee with the last drained in 1988. Joint stability testing all came out normal and the Veteran reported that he had shin splints in both knees, but no symptoms at the time. The Veteran had a meniscal tear and frequent episodes of joint “locking”, pain, and effusion. The Veteran had a meniscectomy in 2005. The Veteran uses a brace regularly due to his knee pain. The examiner reports that the Veteran experiences partial impairment of physical activities of employment like running, jumping, climbing, and walking long distances. In the October 2016 VA examination, the Veteran reported that he experienced flare ups in the left knee when standing, walking, or even bending. Initial ROM measurements reflected flexion limited to zero to 90 degrees and extension from 90 to zero degrees. ROM itself did not contribute to a functional loss. Pain was noted with flexion and extension but did not result in any functional loss. There was evidence of pain with weight bearing and of localized tenderness or pain on palpation of the medial and lateral patella. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or ROM. The Veteran was not examined immediately after repetitive use over time or during a flareup, but the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain and weakness significantly limited the Veteran’s functional ability with repeated use over time and with flare ups but could not be described in terms of ROM. The Veteran had normal muscle strength and no muscle atrophy. The Veteran did not have ankylosis nor did he have a history of recurrent subluxation or lateral instability. The Veteran has a history of recurrent effusion with the last drainage in 1988. The Veteran did not have joint instability but did have a meniscal tear and frequent episodes of joint “locking”, pain, and effusion in the left knee. The Veteran uses a brace and a cane constantly due to the knee pain. In the December 2017 VA examination initial ROM measurements reflected flexion limited from zero to 55 degrees and extension 55 to zero degrees. The ROM itself did not contribute to a functional loss and even though pain was noted with flexion and extension it did not result in a functional loss. There was evidence of pain with weight bearing and there was evidence of localized tenderness or pain on palpation of the medial and lateral patella. There was evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or ROM. The Veteran was not examined immediately after repetitive use over time or during a flareup, but the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare ups. Pain and weakness significantly limited the Veteran’s functional ability with repeated use over a period of time and during flare ups but could not describe it in terms of ROM. The examiner reported that disturbance of locomotion, interference with sitting, and interference with standing are additional contributing factors of the Veteran’s left knee disability. The Veteran had normal muscle strength and no muscle atrophy. The Veteran did not have ankylosis nor did he have a history of recurrent subluxation, lateral instability, or recurrent effusion. The Veteran also did not have joint instability but did have a meniscal tear in the left knee and had frequent episodes of joint “locking”, pain, and effusion. The Veteran uses a brace occasionally and a cane constantly. The examiner opined that the Veteran’s knee disability impacts his ability to run, walk at a fast pace, bend his knees, jump, or climb. The examiner reported that active, passive, weight bearing, and non-eight bearing ROM was conducted, and the results were the same as above. Based on the preceding evidence, the criteria for a higher rating for the Veteran’s left knee strain have not been met. The record shows flexion limited at most to 55 degrees, which is noncompensable. Even with complaints of pain and weakness there was no limitation of flexion (30 degrees) or extension (15 degrees) sufficient to warrant 20 percent evaluations under DCs 5261 or 5260, respectively. 38 C.F.R. § 4.71a. The clinical findings also do not suggest that range of motion would change to the degree required for higher ratings after repetitive use, due to pain, with weight bearing, or during flare-ups. The Veteran has been able to take care of his activities of daily living and even with repetitive use there is no significant loss of motion. Given that his complaints do not prevent him from achieving essentially a noncompensable range of motion, they do not support a finding of additional functional loss for a higher rating. The Veteran’s complaints have been taken into consideration, but there is no evidence that his degenerative joint disease suffers significant or additional functional loss beyond that contemplated by the assigned 10 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Likewise, the Board finds that the record does not reflect any evidence where the Veteran’s knees were manifested by moderate recurrent subluxation and/or instability. Because DC 5257 is not based on loss of range of motion, 38 C.F.R. § 4.40 and 4.45, pertaining to functional impairment and factors to be considered upon evaluation of the joints, respectively, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Board has also considered whether the Veteran would be entitled to higher or separate ratings under any other diagnostic code, but other analogous ratings are either not applicable or do not offer higher disability rating based on the symptomatology exhibited. In other words, there is no evidence of ankylosis, nonunion of the tibia/fibula, or genu recurvatum. See 38 C.F.R. § 4.71a, 5256, 5258, 5259, 5262, 5263. Accordingly, there is no basis for a higher rating. A preponderance of the evidence is against the claims, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is remanded. The Veteran contends that his acquired psychiatric disorder was caused by his time in military service. He reported that he was thrown out of a double bunk because he woke up too late and he was hit on the forehead by a hammer by his drill instructor for refusing to admit that he stole money when he did not steal it. He also reported that he had problems with going into the gas chamber for training since he had nausea problems but was forced to train in it. He also was involved with a fellow service member who had been beat or killed with a brick. He also reported feeling extremely stressed while he was on the battleship due to his knee problems. The Veteran was afforded a VA examination in January 2016 where the examiner reported that the Veteran did not have PTSD since he did not participate in combat activity, was never deployed, and was not exposed to any traumatic situations while he was in the Marines. When reporting a stressor, the examiner reported that the Veteran came from a rough family and that he was often hungry. The examiner further reported that the Veteran quit school in twelfth grade, enlisted in the Marines, and then got discharged soon after because of his bad knee. The examiner did not include any of the stressors that the Veteran reported in his November 2015 Statement in Support of Claim for PTSD. Moreover, the examiner diagnosed the Veteran with recurrent major depressive disorder but did not opine as to whether the Veteran’s depression was related to his time in military service. The Board finds this VA examination to be inadequate since the Veteran’s lay statements regarding his stressors were not addressed nor was there any opinion regarding the Veteran’s major depressive disorder even if the Veteran did not have a diagnosis of PTSD. Since the January 2016 VA examination, the Veteran has been diagnosed with PTSD by VA providers through various mental health treatment he underwent. However, there are some instances where examiners opined that the Veteran did not meet the requirements for PTSD, but that he has depression and anxiety. In a February 2013 VA treatment record, the Veteran reported that his depression started in 2007 with the death of his wife of over 40 years. He also denied symptoms of PTSD. However, in August and September 2017 psychotherapy appointments, the examiner diagnosed the Veteran with chronic PTSD. The Veteran was afforded another VA examination in November 2018 where he was diagnosed with recurrent major depressive disorder with severe anxious distress and with severe polysubstance abuse disorder. The examiner reported one stressor which indicated that the Veteran felt it was very loud when he entered the military. The Veteran furthered that there were people fighting, people throwing trash cans onto the floor, and his rifle was very loud. He furthered that he became scared of loud noises and being around people and that he now feels he needs a “sedative” to be able to engage in large social events. The examiner claimed that this stressor did not meet the requirements for PTSD. The Board finds that this VA examination was inadequate as well because all of the Veteran’s stressors were not listed in the examination to determine whether or not the Veteran has PTSD. Moreover, there was no additional opinion regarding whether or not the Veteran’s major depressive disorder originated in service. An addendum opinion was issued in January 2019 where the examiner was asked to opine whether the Veteran’s psychiatric disorder was at least as likely as not proximately due to or the result of his service-connected left knee strain. The examiner opined that the Veteran’s psychiatric disorder is less likely as not proximately due to the result of his service connected left knee strain since the Veteran reported his symptoms started in 2007 with the death of his wife and that he did not mention his physical disabilities at all when discussing cause of his symptoms. The Board finds that the January 2016 and November 2018 VA examinations to be inadequate and thus, the Veteran is entitled to a remand to obtain a new VA examination that examines his psychiatric disorder properly and thoroughly. When VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). The Veteran has reported other stressors he experienced during service in his November 2015 and November 2017 Statements in Support of Claim for PTSD. These stressors have not been addressed in either of the VA examinations. Moreover, there is evidence that the Veteran has been diagnosed with PTSD various times. Additionally, even if the Veteran does not meet the criteria for PTSD, there is evidence that the Veteran is diagnosed with major depressive disorder. The examiners have not opined as to whether this was at least as likely as not originated in military service. As such, this matter must be remanded for a VA examination and medical opinion to determine whether or not the Veteran has PTSD, if his PTSD is etiologically related to his service, and if his major depressive disorder is etiologically related to his service. The matters are REMANDED for the following action: 1. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner must include the many stressors that the Veteran has already reported including these instances: (a.) He was thrown out of a double bunk because he woke up too late. (b.) He was hit on the forehead by a hammer by his drill instructor for refusing to admit that he stole money when he did not steal it. (c.) He had problems with going into the gas chamber for training since he had nausea problems but was forced to train in it. (d.) He was involved with a fellow service member who had been beat or killed with a brick. (e.) He felt extremely stressed while he was on the battleship due to his knee problems. 2. If any other acquired psychiatric disorders are diagnosed, including major depressive disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.