Citation Nr: 21012446 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-33 687 DATE: March 4, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for left knee Osgood-Schlatter’s disease is denied. Entitlement to an initial evaluation in excess of 10 percent for right knee Osgood-Schlatter’s disease is denied. REMANDED Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with mood disorder is remanded. FINDING OF FACT 1. The Veteran’s Osgood-Schlatter’s disease of the bilateral knees is manifest by painful motion and limited flexion to 75 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee Osgood-Schlatter’s disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 10 percent for right knee Osgood-Schlatter’s disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2000 to May 2001 and from October 2001 to October 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and July 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran requested a hearing before a Veterans Law Judge. The hearing was originally scheduled for May 8, 2018, but the Veteran requested that the hearing be rescheduled to a later date. A new hearing was scheduled for September 5, 2018, and notification letters were sent to the Veteran on August 7, 2018, and August 22, 2018. However, the letters were returned to VA due to being undeliverable, and the Veteran failed to appear at the September 5, 2018 hearing. VA then located an updated address for the Veteran and on September 19, 2018, sent him a letter asking that he call to confirm his new contact information, and enclosed the returned hearing notification letter. Following a review of the record, there is no indication that the Veteran or his representative ever contacted VA during the last two years to reschedule a hearing. As such, the Board deems that the appellant’s request for a hearing is withdrawn. 38 C.F.R. § 20.704 (d). The claims were previously remanded by the Board in September 2018. There was substantial compliance with the Board’s remand directives with regard to the Veteran’s increased rating claims for his knee disabilities. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Rating 1. Entitlement to an initial evaluation in excess of 10 percent for left knee Osgood-Schlatter’s disease 2. Entitlement to an initial evaluation in excess of 10 percent for right knee Osgood-Schlatter’s disease The Veteran contends that he is entitled to higher ratings for Osgood-Schlatter’s disease of the bilateral knees. This appeal stems from a claim dated in July 2012. The Veteran’s bilateral knee Osgood-Schlatter’s disease is rated as 10 percent disabling, effective July 6, 2012, under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. However, the Board notes that the Veteran was assigned 10 percent ratings for each knee due to painful motion and a noncompensable degree of reduced flexion. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The Board concludes that the Veteran’s bilateral knee disability picture, to include the Veteran’s statements, does not more nearly approximate the degree required for a higher or separate rating. Range of motion testing was performed during VA examinations in April 2013 and November 2020. At worst, the Veteran demonstrated 87 degrees of flexion for the right knee, and 85 degrees of flexion for the left knee. The Veteran demonstrated normal extension of each knee. At each examination, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. At the April 2013 examination, the Veteran denied having knee disability flare-ups. At the November 2020 examination, the Veteran reported having flare-ups consisting of increased pain and mild swelling when active and moving around. While given the opportunity to describe functional limitation related to the disability, the Veteran’s statements do not show the requisite limitation of motion necessary for a higher or separate rating. Notably, the examiner in November 2020 estimated the Veteran’s left and right knee range of motion during flare-ups would be, at worst, 75 degrees of flexion and 0 degrees of extension. The examiner also opined that during flare-ups, pain would cause functional loss. Even considering the additional loss of flexion during flare-ups, the degree of limitation would not warrant a higher rating under Diagnostic Code 5260. Additionally, treatment records do not show greater limitation of motion than the examination findings. Given the above, even when considering the knee pain’s impact on physical activities, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Veteran does not have ankylosis, subluxation, lateral instability, or episodes of locking of either knee. He also was not found to have an impairment of the tibia and fibula, or genu recurvatum. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256 – 5259, 5262 – 5263. Therefore, separate ratings for either knee are not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for ratings in excess of 10 percent for left and right knee Osgood-Schlatter’s disease. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with mood disorder is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to a rating in excess of 50 percent for PTSD. In September 2018, the Board remanded the claim for a new VA examination because more than five years had passed since the Veteran’s last VA PTSD examination. At a September 2020 VA PTSD examination, the examiner was unable to diagnose or assess PTSD. The examiner stated that the Veteran was service-connected for PTSD. However, the examiner was unable to determine if the Veteran met the DSM-5 criteria for PTSD because the Veteran was not cooperative with the examination. The Veteran was administered two tests and the results from both tests were indicative of feigning symptoms. The examiner explained that the fact that the Veteran was not diagnosed with PTSD was not tantamount to saying that he did not have PTSD. Instead, it indicated that because the Veteran was uncooperative, the examiner was unable to differentiate possible legitimate symptoms from feigned symptoms. Because of that, the psychologist did not provide further information. The examiner concluded that he was unable to provide an opinion regarding the Veteran’s symptoms or occupational functioning. The examiner noted that the Veteran was evaluated for 1.2 hours, which did not include time spent reviewing records, and that the Veteran was given an opportunity to provide additional information and ask questions. The Board also notes that VA treatment notes from December 2019 show the Veteran declined to answer PTSD and depression screening questions. VA’s duty to assist includes the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that there has not been substantial compliance with September 2018 remand instruction to obtain a new VA examination to assess the severity of the Veteran’s PTSD. The Board recognizes that this has been influenced by the lack of cooperation from the Veteran. Nonetheless, the Board finds that a new examination is needed. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment notes. 2. Schedule the Veteran for an examination with a psychiatrist examiner who has not previously examined the Veteran in conjunction with this claim.to determine the current severity of his service-connected PTSD with mood disorder. The electronic claims file must be reviewed by the examiner. Any indicated diagnostic tests and studies must be accomplished, and the results reported. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.