Citation Nr: 21010785 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-41 175 DATE: February 25, 2021 ORDER A rating in excess of 10 percent for patellofemoral syndrome (PFS), right knee, is denied. A rating in excess of 10 percent for PFS, left knee, is denied. A 50 percent rating, but no more, for posttraumatic stress disorder (PTSD) prior to July 20, 2020, is granted, subject to the criteria governing the payment of monetary benefits. A rating in excess of 70 percent for PTSD since July 20, 2020, is denied. FINDINGS OF FACT 1. The Veteran served on active duty from April 1998 to April 2002. 2. Bilateral PFS has been manifested by subjective complaints of pain, swelling, buckling, tenderness, stiffness, effusions, crepitus, and weakness, with objective findings of flexion no worse than 60 degrees (right) and 55 degrees (left), and extension no worse than 0 degrees (bilaterally); there is no evidence of instability, ankylosis or meniscus condition. 3. Prior to July 20, 2020, PTSD was manifested by good and supportive family relationships, fair to good insight and judgment, depression, anxiety, irritability, sleep impairment, and mild memory impairment; there was no objective evidence of deficiencies in most areas or total social impairment 4. Since July 20, 2020, PTSD has been manifested by deficiencies in most areas; total social and occupational impairment has not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for PFB, right knee, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260-5024 (2020). 2. The criteria for a rating in excess of 10 percent for PFB, left knee, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5260-5024 (2020). 3. The criteria for a 50 percent rating, but no more, for PTSD prior to July 20, 2020, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, DCs 9411, 9413 (2020). 4. The criteria for a rating in excess of 70 percent for PTSD since July 20, 2020, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, DCs 9411, 9413 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In February 2020 the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. As a procedural matter, the Board remanded the issues in April 2020. At a July 2020 VA examination, the examiner diagnosed PTSD and opined that it was related to service. In August 2020, the RO granted a 70 percent rating for the service-connected psychiatric disorder, and recharacterized it as PTSD, previously rated as other specified trauma and stressor related disorder with major depressive disorder. In September 2020, the Veteran filed a claim for service connection for chronic pain disorder and underwent VA examinations in October 2020 and December 2020. In December 2020, the RO denied a rating in excess of 70 percent for PTSD and added the diagnosis of chronic pain syndrome/somatic symptom disorder to the already service-connected psychiatric disorder. The Veteran separately appealed the December 2020 rating decision under the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA) and is the subject of a separate appeal under the AMA. (The AMA automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). As such, the December 2020 AMA rating decision constitutes an initial decision; therefore, the AMA applies to that claim.) However, the issue of entitlement to a higher rating for PTSD rated at 30 percent prior to July 20, 2020, and at 70 percent since, remains on appeal under the legacy system and is addressed in this decision. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Right and Left Knee PFS The right and left knee disabilities are rated at 10 percent each pursuant to DCs 5260-5024. The Board will also consider all potentially relevant diagnostic codes. In order to warrant a higher rating, the evidence must show: • X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations (20% under DC 5003); • ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees (30% under DC 5256); • moderate recurrent subluxation or lateral instability (20% under DC 5257); • dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20% under DC 5258); • symptomatic removal of semilunar cartilage (10% under DC 5259); • flexion of the knee limited to 30 degrees (20% under DC 5260); • extension of the knee limited to 15 degrees (20% under DC 5261); or • impairment of the tibia or fibula with a moderate knee disability (20% under DC 5262). Initially, the Board notes that a September 2016 VA treatment record as well as the May 2018 and August 2020 VA examiners reflected diagnoses of a right knee Baker’s cyst, as well bilateral knee popliteal cysts. The August 2020 VA examination opined that the cysts were a new diagnosis but were unrelated to PFS. The examiner noted that PFS was pain in the knee related to abnormal patellofemoral joint mechanics, lower kinetic chain alterations, and overuse. Although cysts were independent from the PFS, the symptoms overlapped and as such, it was not possible to differentiate which symptoms were attributable to each condition. Therefore, all of the Veteran’s knee symptoms are discussed in this decision. Turning to the evidence, the Veteran has not been diagnosed with right or left knee degenerative or traumatic arthritis, and therefore there is no evidence of incapacitating exacerbations due to degenerative arthritis. As such, the medical evidence does not support a higher rating based on arthritis. Next, the Veteran has not claimed nor does the medical evidence show that he has ankylosis (defined as a stiffening of the joint) in either knee. VA examiners in May 2016, May 2018 and August 2020 specifically found that his knees were not ankylosed. Similarly, neither private nor VA medical records note that he had ankylosis in the knees. As such, the medical evidence does not support a higher rating on this basis. Next, the May 2016, May 2018 and August 2020 VA examiners all found that the Veteran had no history of recurrent subluxation. The examiners noted the Veteran’s report of his knees giving way/buckling; however, on examination, the May 2016, May 2018 and August 2020 VA examiners all found no lateral instability of either knee. Notably, the May 2016 VA examiner noted that the Veteran denied even experiencing any knee instability. Similarly, a review of the private and VA medical records note that while he reported that his knees would give way, there was no history of moderate recurrent subluxation or moderate lateral instability. Therefore, the medical evidence does not support a higher rating on this basis for either knee. With respect to the semilunar cartilage, the Veteran does not have a meniscal injury/semilunar cartilage condition. The May 2016, May 2018 and August 2020 VA examiners specifically noted that there was no such injury or condition, and the private and VA treatment records also do not reflect any meniscal or semilunar cartilage condition. As such, the medical evidence does not support a higher rating on this basis. Next, the evidence does not support higher ratings based on limitation of flexion or extension. To that end, the Veteran is currently assigned a 10 percent rating for limitation of flexion for pain rather than measured limitation of flexion, in both knees. The May 2016 VA examiner measured right and left knee extension/flexion as 0 to 90 degrees with pain. The Veteran was unable to perform repetitive use testing due to pain. It was noted that the Veteran was unable to kneel or squat and there was objective evidence of crepitus. There was no report of flare-ups or functional loss, but the Veteran described increased pain with standing, walking, kneeling squatting, stairs, sitting, and driving, and with scold, damp weather. Alleviating factors included rest, elevation, heat, ice, ibuprofen, and neoprene sleeves The May 2018 VA examiner measured right knee extension/flexion as 0 to 60 degrees, including with pain. Left knee extension/flexion was from 0 to 55 degrees with pain. He was unable to perform repetitive use testing due to pain. The Veteran described functional limitation of his knees in terms of difficulty with running, biking, community activities with prolonged walking and sports. He reported flare-ups when he walks longer than a city block, when driving more than 30 minutes and with any running/biking. The examiner indicated that during a flare-up, pain caused functional loss but bilateral range of motion did not change. The examiner indicated that the examination was being conducted during a flare-up. With regard to functional loss due to repetitive use over time, the examiner stated that the findings were neither consistent nor inconsistent with the Veteran’s statements regarding functional loss with repetitive use over time. Additional factors contributing to the knee disabilities included disturbances of locomotion and interference with standing. The August 2020 VA examiner measured right and left knee extension/flexion from 0 to 100 degrees, with moderate pain on the right and moderate to severe pain on the left. Repetitive use testing was conducted. The examiner opined that pain resulted in functional loss with repeated use over time and during a flare-up; however, range of motion did not change on repetitive use testing. The examiner opined that during repetitive use over time or during a flare-up, the Veteran would experience increased pain leading to decreased functional capacity; however, the examiner stated that it was not possible to accurately estimate range of motion loss, as the limitations were variable depending on the duration of repeated use over time or severity of flare-up, and the Veteran was unable to articulate the frequency or duration. The examiner also stated that the severity of overuse/flare scenarios were mild to moderate. Further, VA treatment records in September 2016 showed bilateral knee extension/flexion from 0 to 120 degrees; instability was not found. A September 2017 VA treatment record indicated that the Veteran reported constant knee pain rated at 5 or 6 out of 10. He specifically indicated that his knee pain was not worsening. At no other point during the appeal period was his range of motion for either knee measured at less than 30 degrees for flexion, or 10 degrees for extension. An increased rating is warranted when there is a permanent increase in severity of symptoms but not for temporary decreases in functionality. Moreover, at the most recent VA examination, the Veteran exhibited improved range of motion. As such, the medical evidence does not support higher ratings under DCs 5260-5261 for limitation of motion. Next, the Veteran has not claimed, and the evidence does not show, moderate impairment of the tibia or fibula. The May 2016 VA examiner noted that the Veteran had bilateral shin splints/stress fractures/medial tibial stress syndrome; however, it was indicated that this condition did not affect the range of motion of the knee and the Veteran described his symptoms in terms of no longer being able to run. Private and VA medical records did not show a moderate left or right tibia or fibula impairment. Therefore, the medical evidence does not support a higher rating under these criteria. The Veteran submitted written statements in August 2017, February 2020, and August 2020 arguing that the VA examinations were inadequate. Specifically, in the August 2017 and February 2020 statements, he indicated that on range of motion testing, the examiner forced his appendages past where he could push them, and the pain was substantial. He also indicated that the examiner asked, “is that as far as you can go.” The February 2020 statement further stated that the examination only took 29 minutes, the examiner did not want to hear how the Veteran’s knees sounded when walking up/down stairs, and the examiner pushed the Veteran past the point of substantial pain during range of motion testing even though he told her to stop. In his August 2020 statement, he related that the VA examiner did not conduct range of motion testing, did not use a goniometer, and only asked questions. Further, he indicated that the examiner did not note that he wore a brace/used a cane, did not review his medical records which indicated that he had stress fractures because the examiner marked that the Veteran did not have stress fractures. The Board has reviewed the examination reports and finds that they are adequate for evaluation purposes. The examination reports, when reviewed as a whole, addressed his past medical history and current complaints, they contained detailed examination findings and conclusions, and the examiners indicated review of the claims file. Further, the examinations were conducted by three different VA examiners. All examination reports, to include the August 2020 VA examination report, noted range of motion testing was accomplished and ranges of motion are consistent with the contemporaneous medical evidence. Although the August 2020 examiner did not note that the Veteran wore knee braces/used a cane or had stress fractures/shin splints, the fact that he wore a brace was noted in earlier examinations and the stress fractures were also accounted for in other examinations/records. There is nothing in the record that would suggest that when reviewed as a whole, the examinations were inadequate. They sufficiently represent the overall disability picture and are supported by the contemporaneous VA treatment records showing similar ranges of motion and symptoms. When reviewed in their entirety, the examinations account for the fact that the Veteran experienced pain as part of the assessment, that he wore a brace, and that he had shin splints/stress fractures. Moreover, the knee symptoms and complaints were addressed. As such, the examinations were adequate for adjudication purposes but do not support a higher rating. PTSD All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders (“General Rating Formula”). Under the General Rating Formula, a 30 percent rating is warranted for 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 occurring weekly or less often, chronic sleep impairment, and mild memory loss (i.e. forgetting names, directions, or recent events). A 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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), and an inability to establish and maintain effective relationships. A 100 percent rating is warranted under the General Rating Formula for 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Turning to the medical evidence, a May 2016 VA examiner indicated that the Veteran’s psychiatric symptoms had worsened in the past year. The examiner reflected that the Veteran had social and occupational 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 medication. The Veteran was noted to be in a relationship/dating his significant other for more than one year and did not have any children. He reported that he had quite a few friends and enjoyed camping, fantasy football, and going out for drinks/dinner. He reported having a distant relationship with his siblings, but talked to his mother weekly (although he did not see her often). He had been employed at the same facility for three years, and got along with his coworkers, supervisors and subordinates. He denied ever being fired or quitting a job without notice. The Veteran indicated that he was not receiving psychiatric treatment. Psychiatric symptoms included depression, anxiety, chronic sleep impairment, and disturbances of motivation and mood. On examination, he was appropriately groomed, pleasant and cooperative, his mood was dysphoric, his affect was full and appropriate, and his speech was normal. Motor activity was calm. Thought processes were clear, coherent, and goal directed. Thought content was unremarkable and negative for suicidal ideation, homicidal ideation, or any apparent delusions. He denied perceptual distortions and was fully oriented and alert. Concentration was reported to be fair. Insight was determined to be fair. The examiner felt that the Veteran did not meet the full criteria for a diagnosis of PTSD. The July 2020 VA examiner indicated that the Veteran met the criteria for a diagnosis of PTSD related to service. The examiner noted that at the prior examination the Veteran did not meet the criteria for a diagnosis of PTSD because he did not meet one symptom in the avoidance criteria. It was noted that the Veteran did not feel comfortable with the previous examiner and did not open up about the extent of his mental health symptoms at that examination. The examiner indicated that the mental health symptoms resulted in occupational and social impairment with reduced reliability and productivity. Since his last examination it was noted that the Veteran got married and had been married for three years. He stated that he and his wife disagree at times and his wife reported that she did not feel that he was as connected to her as she would like. She referred to him as “emotionally unavailable;” however, he reported that the marriage is good. He also reported that he had a good relationship with his teenage stepson. He indicated that he talked with his mother once a week and with his brother occasionally. He had not been in contact with his sister as frequently as he was previously. He did not feel as connected to his family as he did prior to the military and he generally felt distant from people. The Veteran reported that he moved since his last examination and felt his friendships had changed. He reported that he was more irritable and friends describe him as an asshole at times. He stated that he was less tolerant of things that he used to be able to dismiss. He liked to do outdoor activities and stayed busy helping his in-laws with projects. He did not like crowded places and did not like restaurants. He preferred to be around people he knew. He did not seek out new relationships. He was hypervigilant when out and avoided fireworks or other triggers. He had taken another full-time job, worked as a manager, and reported that his work performance was good. He denied any significant work issues. He indicated that some interactions with coworkers had been more strained and he attributed this to his increased irritability. However, he walked away instead of acting out on these feelings. He had some good relationships with coworkers and his boss had been supportive. He had taken a few classes toward his master’s degree since his last examination. He did well academically and connected with some classmates. He reported thinking about getting his real estate license. Symptoms related to his service-connected psychiatric disabilities were noted to include depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or worklike setting, suicidal ideation, and obsessional rituals which interfere with routing activities. On examination the Veteran was casually dressed and appeared to have good grooming and hygiene. He was cooperative. He was a bit guarded at first but opened up and relaxed during the examination. His thought processes were logical and goal-directed. His mood was slightly down with restricted affect. He was tearful at a few different times. The examiner noted that additional symptoms included fluctuating appetite, decreased energy and fatigue, rumination, decreased self-confidence, and occasional feelings of hopelessness and helplessness. Based upon the VA examinations, to especially include the fact that the Veteran did not feel comfortable with the May 2016 VA examiner and did not open completely during that examination, the medical evidence generally reflected symptoms and overall impairment approximated the criteria for a 50 percent rating for the time period prior to July 20, 2020. In this regard, the July 2020 VA examiner indicated that the Veteran’s social and occupational impairment was at the level of reduced reliability and productivity. As the Veteran was not forthright with the May 2016 VA examiner, and nothing in the VA treatment records dating from 2016 to 2020 shows any less severe symptoms, these symptoms can reasonably be attributed to the prior time period. As such, a 50 percent rating is warranted for the time period prior to July 20, 2020. However, a rating in excess of 50 percent is not warranted prior to July 20, 2020, as the Veteran did not have sufficient symptoms of the kind listed in the 70 percent criteria, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation. In this regard, while the July 2020 examiner noted that the Veteran exhibited suicidal ideation and obsessional rituals which interfered with routine activities, he did not experience the majority of the symptoms like or similar to those listed under the 70 percent criteria, such as speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, unprovoked irritability with periods of violence, spatial disorientation, neglect of personal appearance and hygiene, or any symptoms like or similar to the 70 percent criteria. Moreover, the evidence does not support a finding of deficiencies in most areas prior to July 20, 2020. While the Veteran’s symptoms affected his marriage in that he was not as close to his wife as she would like him to be, he reported his marriage was good (he even initially got married during this time period), he reported a good relationship with his step-son and mother, and somewhat good relationships with his siblings. Moreover, he had friends, and was gainfully employed without difficulty. There was also no deficiency in terms of judgment or thinking during the time period prior to July 20, 2020. Instead, his insight was found to be fair in May 2016 and his judgment was deemed normal in December 2017. While there is evidence of depressed mood, irritability, impairment in sleeping, anxiety, and difficulty in establishing and maintaining effective work and social relationships, the level of impairment of or symptoms related to his mood and social and occupational interaction is commensurate with the 50 percent rating. For the time period beginning July 20, 2020, a rating in excess of 70 percent is not warranted. In this regard, the evidence does not show total social or occupational impairment. Notably, the Veteran was married during this time period and his marriage was self-described as good. In addition, he reported a good relationship with his step-son, and significant contact with his mother and some contact with siblings. While he reported a change in relationship with friends, the above listed relationships more than suffices to show that there is no evidence of total social impairment. Similarly, the Veteran was gainfully employed full time during this time period. He reported some good and some bad relationships with coworkers, and a good relationship with his boss. Moreover, he was noted to be a manager and did not report any difficulty with subordinates. As such, total occupational impairment has not been shown, a 100 percent rating is not warranted. The Board has also considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s knee disabilities and his psychiatric disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which the disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.