Citation Nr: 21009078 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 18-13 755 DATE: February 18, 2021 ORDER Entitlement to an initial evaluation of 30 percent for service-connected major depressive disorder is granted. A separate rating of 20 percent for right knee instability is granted. A separate rating of 20 percent for left knee instability is granted. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted effective February 1, 2014. REMANDED Entitlement to service connection for a back disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for bilateral leg disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to an evaluation in excess of 30 percent for service-connected major depressive disorder is remanded. Entitlement to an evaluation in excess of 20 percent for right knee instability is remanded. Entitlement to an evaluation in excess of 10 percent for right knee limitation of motion is remanded. Entitlement to an evaluation in excess of 20 percent of left knee instability is remanded. Entitlement to an evaluation in excess of 10 percent for left knee limitation of motion is remanded. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran’s service-connected major depressive disorder has manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks throughout the period on appeal. 2. The Veteran’s right knee is productive of instability for which she has been prescribed a brace. 3. The Veteran’s left knee is productive of instability for which she has been prescribed a brace. 4. The Veteran’s service-connected disabilities have rendered her unable to secure or follow a substantially gainful occupation from February 1, 2014. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 30 percent for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434. 2. The criteria for entitlement to a separate rating of 20 percent for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.40, 4.45, 4.59, 4.6, 4.7, 4.71a, Diagnostic Code (DC) 5257. 3. The criteria for a separate rating of 20 percent for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.40, 4.45, 4.59, 4.6, 4.7, 4.71a, Diagnostic Code (DC) 5257. 4. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met effective February 1, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to December 1987. A hearing was held before the undersigned Veterans Law Judge (VLJ) in January 2021. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an initial evaluation of 30 percent for service-connected major depressive disorder The issue in this appeal is whether the symptoms of the Veteran’s major depressive disorder caused the level of impairment required for a disability rating of 30 percent or higher. The Board concludes that the Veteran’s symptoms most closely approximated the symptoms associated with a 30 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. Under the General Rating Formula for Mental Disorders a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. 38 C.F.R. § § 4.130, Diagnostic Code 9434. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. Id. A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran’s psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. §§ 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). In December 2014, the Veteran was afforded a VA examination regarding the nature and severity of her service-connected major depressive disorder. The examiner noted that the Veteran did not exhibit suicidal or homicidal ideation. The Veteran expressed depressed mood, chronic sleep impairment, and exhibited logical thought processes and speech within normal limits. In a January 2021 hearing before the undersigned VLJ, the Veteran stated that she experiences anxiety attacks, impaired memory, recurrent depressive episodes and impaired sleep. The Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Board finds that the Veteran’s symptoms are consistent with a rating of at least 30 percent. Thus, the criteria for a schedular rating of 30 percent have been met, and the Veteran’s claim is granted; entitlement to a rating in excess of 30 percent is addressed in the remand section of this decision. 2. Entitlement to an initial evaluation of 20 percent for right and left knee instability There are several diagnostic codes used to evaluate disabilities of the knees and legs. For knee impairment with recurrent subluxation or lateral instability, under criteria that became effective February 7, 2021, the disability is rated 10 percent when there is a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, 20 percent when there is either: (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; or (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, and 30 percent when there is 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. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). In VAOPGCPREC 23-97, VA’s General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257, and that evaluation of a knee disability under both of these codes would not amount to pyramiding under 38 C.F.R. § 4.14. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); see also Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate finding must be based on additional disability. The RO has rated the Veteran’s right and left knee degenerative joint disease as 10 percent disabling under DC 5003-5260. She also seeks compensation for right knee and left knee instability. VA treatment records reveal that that Veteran has been prescribed knee braces for both knees, which the Veteran reported in the January 2021 hearing were issued to assist in knee stability. Under the former criteria set forth in Diagnostic Code 5257, slight impairment of either knee, including recurrent subluxation or lateral instability, warranted a 10 percent evaluation. A 20 percent evaluation required moderate impairment, while a 30 percent evaluation required severe impairment. 38 C.F.R. § 4.71a. VA revised Diagnostic Code 5257, effective February 7, 2021. 82 F.R. 35719. Under the revised criteria, VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). As such, the Board will proceed with the adjudication of this issue. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provides that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. The Board finds that a 20 percent disability rating is warranted for the Veteran’s left and right knee instability under both the former and revised criteria set forth in Diagnostic Code 5257 as the Veteran has competently and credibly reported instability in her knees throughout the appeal. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU) It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran’s history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran asserts that her service-connected disabilities cause her to be unable to secure or follow a substantially gainful occupation. The Board notes that the Veteran’s service-connected disabilities meet the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran is capable of gainful employment. 38 C.F.R. § 4.16. On her most recent TDIU application, the Veteran reported that she last worked full-time in January 2014. See VA Form 21-8940, May 2015. The Veteran reported that beginning in 2009 she worked 40 hours per week as a certified nursing assistant (CNA). The Veteran’s education consists of a CNA training program and an administrative training business management program. In a December 2014 VA examination, the examiner noted that the Veteran’s knee disabilities make work that requires heavy lifting, standing, and walking difficult. Further, in the January 2021 hearing before the undersigned VLJ, the Veteran reported that she experienced panic attacks, irritability causing her to “snap at other people,” and sleep and memory impairments associated with her service-connected major depressive disorder. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ), that the evidence supports the conclusion that the Veteran’s service-connected disabilities prevent her from securing and following substantially gainful employment. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib, 733 F.3d 1350. Based on the evidence presented in this case, the Board finds that the functional impairment associated with the Veteran’s service-connected disabilities was of such nature and severity as to preclude substantially gainful employment beginning on February 1, 2014. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail). REASONS FOR REMAND 1. Entitlement to service connection for a back disability, to include as secondary to service-connected disabilities, is remanded. The Veteran received a VA examination regarding the nature and etiology of her claimed back disability in December 2014. The examiner diagnosed the Veteran with lumbosacral strain but opined that it is less likely than not that the Veteran’s back condition is secondary to her bilateral knees. By way of rationale, the examiner merely stated that the Veteran’s “gait is essentially normal” and that she sees a podiatrist for foot problems and has normal range of motion (ROM). The examiner, however, did not provide any explanation for the conclusion that the Veteran’s back condition is less likely than not secondary to her knee conditions. Accordingly, the Board finds this examination to be inadequate for determining entitlement to service connection and remand is warranted to obtain a new examination. 2. Entitlement to service connection for bilateral leg disability, to include as secondary to service-connected disabilities, is remanded. The Veteran is seeking service connection for bilateral leg disabilities which she contends are etiologically related to her service-connected disabilities. The Board notes that the VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold.  McLendon, 20 Vet. App. at 83. A review of VA treatment records reveals that the Veteran receives treatment for leg pain. However, to date, the Veteran has not received a VA examination regarding the alleged condition. Accordingly, the Board finds that remand is warranted to obtain a VA examination to determine the nature and etiology of the Veteran’s claimed leg pain. 3. Entitlement to an evaluation in excess of 30 percent for service-connected major depressive disorder, and in excess of 20 percent for service-connected left and right knee instability, and in excess of 10 percent for left and right knee limitation of motion is remanded. As there is considerable overlap in the applicable evidence for the Veteran’s claims for entitlement to increased evaluations for service-connected major depressive disorder and degenerative joint disease of the bilateral knees, the Board shall discuss these claims together. The Board notes that the Veteran’s most recent VA examinations for the claimed conditions were conducted in December 2014, almost seven years ago. Given the length of time since the last examination, and the potential worsening of the Veteran’s claimed conditions, a remand is warranted for a contemporaneous examination. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination(s) by an examiner(s) with sufficient expertise to fully assess the severity of the Veteran’s service-connected major depressive disorder and bilateral knee disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Regarding the Veteran’s service-connected bilateral knee disabilities, ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and non-weight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 2. Afford the Veteran an appropriate VA examination with respect to her claimed back and bilateral leg disabilities. The examiner must provide an opinion addressing the following: (a.) Whether the Veteran has any disabilities of the back and/or legs. (b.) For any diagnosed back and/or leg disabilities, whether it is at least as likely as not that any disability at any point during the appeal period had its onset during active duty service or is related to any in-service disease, event, or injury. (c.) Whether any diagnosed back and/or leg disabilities are at least as likely as not proximately due to or aggravated by the Veteran’s service-connected disabilities. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.