Citation Nr: 21010201 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-01 953 DATE: February 24, 2021 ORDER The claim for a rating greater than 40 percent for chondromalacia and arthritis of the right knee, based on limitation of extension, from February 23, 2016, is denied. The claim for a rating greater than 20 percent for right knee instability, from February [REDACTED], 2016, is denied. The claim for an effective date earlier than January 14, 2013, for service connection for depression with anxiety is denied. The claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from April 10, 2012, to January 13, 2013, is granted. FINDINGS OF FACT 1. Since February 23, 2016, the Veteran has not had less than 30 degrees of limitation of right knee extension. 2. Since February 23, 2016, the Veteran has had no more than moderate instability of the right knee. 3. A claim for service connection for a psychiatric disorder was received on January 14, 2013, but the evidence does not show a nexus to military service; and a nexus to other service-connected disorders was not shown prior to VA psychiatric examination on February 18, 2016. 4. Resolving all doubt in the Veteran’s favor, the Veteran’s service-connected disorders precluded obtaining and retaining substantially gainful employment from April 10, 2012, to January 13, 2013. CONCLUSIONS OF LAW 1. The criteria for a rating greater than of 40 percent for chondromalacia and arthritis of the right knee, based on limitation of extension, from February 23, 2016, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.27, 4.71a, DC 5003 – 5261. 2. The criteria for a rating greater than 20 percent for right knee instability, from February 23, 2016, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.27, 4.71a, DC 5257. 3. The criteria for an effective date earlier than January 14, 2013, for service connection for depression with anxiety are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2); and 38 C.F.R. § 3.155(a) (effective to March 23, 2015). 4. The criteria for a TDIU rating from April 10, 2012, to January 13, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1973 to November 1976. In May 2014 the Veteran testified during a Board videoconference hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. In part, a March 2015 Board of Veterans’ Appeals (Board) decision remanded a claim for service connection for an acquired psychiatric disability, to include as secondary to the Veteran's multiple service-connected disabilities; a claim for a rating in excess of 30 percent for chondromalacia and arthritis of the right knee; and a claim for a TDIU rating. An April 2016 rating increased a 30% rating for chondromalacia and arthritis of the right knee based on limitation of knee extension to 40% effective February 23, 2016 (date of VA examination). A December 2017 Board decision granted a 10% rating from April 10, 2012 through April 3, 2013, and a 20% rating from April 4, 2013 through February 22, 2016, for chondromalacia and arthritis of the right knee based on limitation of knee flexion; and granted a 50% rating from April 10, 2012 through February 22, 2016, based on limitation of knee extension. A claim for a rating in excess of 20% for right knee instability and a claim for a TDIU rating were remanded. A rating decision later in December 2017 effectuated the Board’s decision but assigned a 40% rating for limitation of right knee extension since February 23, 2016 (date of VA examination). Because the 40% rating is less than the maximum rating for limited knee extension, this matter remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Breniser v. Shinseki, 25 Vet. App. 64, 79 (2011). Because the Veteran died on February [REDACTED], 2019, a May 2019 Board decision dismissed the appeal. It was noted that an eligible person could request to be substituted as the appellant. A May 4, 2020, letter informed the appellant, the Veteran’s surviving spouse, that she met the basic eligibility for substitution as the spouse of the Veteran. She was informed that she was substituted as the claimant in her late husband’s appeal. A February 2021 rating granted entitlement to basic eligibility to Dependents’ Educational Assistance (DEA) but denied entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 and denied entitlement to service connection for the cause of the Veteran’s death. General Rating Principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. If there is a question as to which of two evaluations shall be applied, the higher rating is assigned if the disability picture more nearly approximates the criteria required therefor; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt is to be favorably resolved. 38 C.F.R. §§ 3.102, 4.3. A veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the disability rating is at issue, the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made, by reason of which separate ratings for each time period may be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In addition to applying schedular criteria in rating musculoskeletal disabilities, consideration is given to such factors as additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, when those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The rating for the Veteran's chondromalacia and arthritis of the right knee based on limitation of extension has been assigned under 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5003 – 5261. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned 38 C.F.R. § 4.27. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003. For rating purposes, normal range of motion in a knee joint is from 0 (full extension) to 140 degrees (full flexion). 38 C.F.R. § 4.71, Plate II. 1. The claim for a rating greater than of 40 percent for chondromalacia and arthritis of the right knee, based on limitation of extension, from February 23, 2016 Limitation of knee extension is rated as follows: a noncompensable rating is warranted when it is limited to 5 degrees; a 10 percent rating is warranted when it is limited to 10 degrees; a 20 percent rating is warranted when it is limited to 15 degrees; a 30 percent rating is warranted when it is limited to 20 degrees; a 40 percent rating is warranted when it is limited to 30 degrees; and a maximum 50 percent rating is warranted when it is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. The Veteran was afforded VA rating examinations on February 23, 2016 and March 21, 2018. At the 2016 examination he related having flareups at which times his right knee tended to give out, and at the 2018 examination he reported that the condition had worsened. However, a comparison of the findings of these examination shows that even if the condition has worsened, it has not progressed to the extent of warranting a rating greater than 40 percent for limitation of extension. He had localized tenderness or pain on palpation at both examinations. At the 2016 and 2018 examinations he had crepitus and while at the 2016 examination right knee extension was limited to 30 degrees, at the 2018 examination he had full extension and that examiner estimated that even during a flareup the Veteran would still have full extension. Also, at the 2016 examination the Veteran was not able to perform repetitive use testing, but he was able to do so at the 2018 examination without any additional loss of motion. Both examinations noted that pain, weakness, fatigability or incoordination significantly limited functional ability during a flareup but only the 2016 examination found that repeated use over time had such an impact, while the 2018 examination found that repeated use over time did not significantly limit functional ability. Overall, and even with consideration given to favorably resolving doubt, since February 23, 2016, the Veteran’s right knee chondromalacia and arthritis has not been manifested by such limitation of extension or functional impairment due to limitation of extension as to more closely approximate the criteria for a rating in excess of 40%. 2. The claim of entitlement to a rating greater than 20 percent for right knee instability, from February 23, 2016 Under 38 C.F.R. § 4.71a, DC 5257, slight instability of a knee warrants a 10% rating; moderate instability warrants a 20% rating; and severe instability warrants a 30% rating. The February 23, 2016 rating examination found that of three possible degrees of instability, with 1+ being instability of between 0 and 5 millimeters, 2+ being from 5 to 10 millimeters, and 3+ being from 10 to 15 millimeters, the Veteran had 2+ instability. Because this falls between 1+, i.e., slight instability, and 3+, i.e., severe instability, that examination found that the Veteran had no more than moderate right knee instability, and this level of impairment warrants no more than the currently assigned 20% rating. Moreover, the 2018 VA rating examination found that he did not have any instability of the right knee. Accordingly, the Board finds that even with consideration given to favorably resolving doubt, since February 23, 2016, the Veteran’s right knee instability has not been manifested by more than moderate instability such as to more closely approximate the criteria for a rating in excess of 20%. 3. The claim for an effective date earlier than January 14, 2013, for service connection for depression with anxiety It is contended that the Veteran had depression and anxiety even during military service and thereafter, such that an effective date for service connection for his psychiatric disorder should predate the filing of his claim. For the reasons which follow the Board finds that an effective date prior to the filing of his claim for service connection must be denied. As the Board noted in March 2015, an October 2013 rating decision denied service connection for depression. In November 2013, the Veteran filed a Notice of Disagreement (NOD). A Statement of the Case (SOC) was issued in January 2014, and the Veteran filed a substantive appeal later that month. In 2015 the Board remand the claim because at the May 2014 hearing, a new theory of entitlement, i.e., that an acquired psychiatric disability was caused or aggravated by multiple service-connected disabilities. An April 2016 rating decision granted service connection for depression with anxiety and assigned an in initial 30% rating all effective January 14, 2013, date of receipt of claim; and a 100% schedular rating was assigned effective February 18, 2016. If a claim for service connection is received within one year of separation from active service, the effective date will be the day following separation from active service or date entitlement arose, whichever is later. Otherwise, if the claim is not received within one year of separation from active service, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Generally, the effective date of an award of service connection for an initial claim is assigned based on the facts found but shall not be earlier than the date of receipt of an application for compensation. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). The service personnel records show that the Veteran served overseas in Germany but did not serve in Vietnam. Although the Veteran testified at a May 2014 Board videoconference that he believed that he developed depressive symptoms during service in about 1974 or 1975, the service records are negative for signs, symptoms, complaints, history, treatment, diagnoses or hospitalization for psychiatric disability. In this regard, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a disease or disorder may be diagnosed by unique and readily identifiable features, and in such case lay evidence is not a determination which is ‘medical in nature’ but, rather, it is one capable of lay observation. See generally Jandreau v. Nicholson, 429 F.3d 1372, 1377 (Fed.Cir. 2007). However, a psychiatric disorder is not necessarily accompanied by observable symptoms, and for that reason lay evidence, standing alone, is not competent and sufficient to identify a psychiatric disorder. See Young v. McDonald, 766 F.3d 1348 (Fed.Cir. Sept. 8, 2014). The Veteran was afforded a VA psychiatric examination on February 18, 2016. The diagnosis was a severe depressive disorder with anxiety due to medical condition of chronic back pain. The examiner opined that it was at least as likely as not that that depressive disorder was proximately due to pain from his service-connected back disorder of spondyloarthropathy with intervertebral disc syndrome (IVDS) as well as chondromalacia and arthritis of the right knee. There is no earlier competent, i.e., medical evidence, linking any psychiatric disorder to either the Veteran’s military service or his service-connected disorders. Consequently, a nexus between a psychiatric disorder and the Veteran’s service-connected disorders is first shown as of the February 18, 2016, VA examination. There is no competent evidence of an actual nexus between a psychiatric disorder and his military service. The Veteran also testified that he had been treated after service for psychiatric disability. However, clinical records of treatment, alone, without an expression of a belief of entitlement to compensation are insufficient to establish an informal claim for service connection under governing regulations in effect prior to March 23, 2015. “[T]he essential requirements of any claim, whether formal or informal," were "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also 38 C.F.R. § 3.155(a) (effective to March 23, 2015); see MacPhee v. Nicholson, 459 F.3d 1323, 1325 (Fed. Cir. 2006). Here, there was no informal or formal claim for service connection for a psychiatric disorder prior to January 14, 2013. Moreover, the date as of which a required nexus is established, i.e., when it was factually shown that a psychiatric disorder was linked to his service connected disorder, is the February 18, 2016, VA psychiatric examination, which is after the January 14, 2013 receipt of claim, and is the proper effective date for the grant of service connection. To the extent that an earlier effective date, i.e., the date of receipt of the January 14, 2013, claim has been established as the effective date, this is no more than harmless error, and it actually accrued to the benefit of the Veteran. Accordingly, an effective date prior to January 14, 2013, for service connection for an acquired psychiatric disorder is not warranted. 4. The claim for a TDIU rating from April 10, 2012, to January 13, 2013 Historically, the Veteran was notified by RO letter of January 8, 1997, that his claim for a TDIU rating was denied. Following receipt in March 1997 of a Notice of Disagreement (NOD), as Statement of the Case (SOC) was issued in March 1997. He testified in support of that claim at a September 1997 hearing before a Veterans’ Law Judge sitting at Muskogee, Oklahoma. However, he never perfected that appeal by filing a Substantive Appeal, VA Form 9. Subsequently, an August 2009 Board decision denied entitlement to a TDIU rating since September 11, 2003 but remanded the matter of entitlement to a TDIU rating prior thereto. A June 30, 2010 Board denied entitlement to a TDIU rating prior to September 11, 2003. The Veteran now contends that he was unable to perform the mental and physical acts required to obtain and retain substantially gainful employment prior to the assignment of a 100% combined rating for his service-connected disorders on January 14, 2013. For the period from April 10, 2012, to January 13, 2013, the Veteran had a combined rating of 80% percent, during which time his service-connected right knee chondromalacia and arthritis, with limitation of extension, was rated 50%. Therefore, the numeric requirements for TDIU on a schedular basis were met. 38 C.F.R. § 4.16(a). Resolving all doubt in favor of the Veteran, the Board concludes that his service-connected disorders precluded obtaining and retaining substantially gainful employment from April 10, 2012, to January 13, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. A TDIU may be assigned where the schedular rating is less than total and a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment. Id. Attention should be given to the veteran’s history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran’s particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Next, the Board must consider whether the Veteran unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disability for the period from April 10, 2012, to January 13, 2013. As to the economic component, the record shows that the Veteran was not engaged in an occupation earning more than marginal income during the relevant time period. As to the non-economic component (e.g., veteran’s history, education, skills, and training: whether the Veteran has the mental ability to perform the types of activities required by the occupation at issue), the record reflects that in VA Form 21-8940, Application for Increased Compensation Based on Unemployability, received on March 18, 2015, the Veteran reported having had 1 year of college education, and that his disabilities affected full-time employment, he last worked, and became too disabled to work on January 1, 2011. He had work experience in parking lot maintenance from June 2006 to January 2011. He had received Social Security Administration (SSA) disability compensation due to his service-connected back disorder but he tried to work under SSA’s “Right to Work” program until he could no longer work in January 2011. However, the preponderance of the evidence shows that he ceased working not in January 2011 but in January 2012. For example, at the 2015 Board hearing he testified under oath that he had not worked in the past 2 years, having ceased working in January 2012 as a job estimator in parking lot repairs and general contracting. Similarly, on VA psychiatric examination on February 18, 2016 it was reported that for four years following service he had owned a bar, before closing it down. He had worked in construction from 1981 to 1987 but had to stop due to physical problems. He had been on Social Security Administration (SSA) disability benefits since 1988 due to physical problems. He had attempted to work in a limited capacity under an SSA program from 2008 to 2012 but was forced to leave that job due to his chronic pain. He reported that he had not been able to obtain or maintain employment since January 2012. VA audiometric testing in May and June 2012 yielded results that warranted the Veteran’s current 10% rating for bilateral hearing loss and he has had a 10% rating for tinnitus, both effective since April 10, 2012. In an October 2013 report from Dr. J. Ellis, it was reported that the Veteran had completely stopped working on January 7, 2012 because of severe back pain. A June 2012 CT scan had revealed disc bulging throughout much of the lumbar spine and bilateral fusion of the sacroiliac joints. He now had nerve impingement with sciatic radiculopathy from IVDS in both lower extremities which was severe in the right leg and moderate in the left leg. He also had limited motion and instability of the right knee. After a physical examination it was opined that the Veteran’s severe knee and low back pain caused him to be unable to engage in any type of gainful employment. During most, if not all of the relevant time frame, the Veteran continuously sought and received treatment for his service-connected disorders of the low back and knee. VA examination of his knee in June 2012 yielded an opinion that the disability impacted his ability to work because it limited walking and kneeling as a carpenter, and VA examination of his low back at that time yielded an opinion that the disability impacted his ability to work because it limited bending and standing. The Board finds that this level of impairment precludes non-sedentary employment and, given the Veteran’s past work experience, his employment history was not one of having engage in sedentary work. Even his short lived attempt to re-enter the job market was ultimately unsuccessful. From the foregoing, and with the favorable resolution of doubt, the Board concludes that since April 10, 2012, when the Veteran first met the schedular criteria for a TDIU rating, to January 13, 2013, the effective date of a combined 100% schedular rating, he was been incapable of obtaining or retaining substantially gainful employment. Accordingly, a TDIU rating from April 10, 2012, to January 13, 2013, is granted. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.