Citation Nr: 21013548 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-08 009 DATE: March 9, 2021 ORDER Service connection for a lumbar disability is granted. Service connection for a right knee disability is granted. Service connection for a right hip disability is granted. Service connection for a left hip disability is granted. Service connection for a right foot disability is granted. Service connection for a left foot disability is granted. Service connection for a right ankle disability is granted. Service connection for a left ankle disability is granted. An initial rating in excess of 10 percent for a left knee disability is denied. A rating of 20 percent for a left knee disability (moderate instability) is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise that the Veteran’s lumbar spine disorders are proximately due to his service-connected left knee disability and altered gait. 2. The competent and probative evidence tends to show the Veteran’s right knee disorder is proximately due to his service-connected left knee disability and altered gait. 3. The competent and probative evidence tends to show the Veteran’s bilateral hip, ankle, and feet conditions, manifested by chronic pain resulting in functional impairment of earning capacity, are proximately due to his service-connected left knee disability and altered gait. 4. The Veteran has had left knee flexion of greater than 120 degrees. 5. For the period on appeal, the Veteran’s left knee instability was moderate. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar disability, as secondary to his service-connected disabilities, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for service connection for a right knee disability, as secondary to his service-connected disabilities, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for service connection for a bilateral hip disability, as secondary to his service-connected disabilities, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 4. The criteria for service connection for a bilateral foot disability, as secondary to his service-connected disabilities, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 5. The criteria for service connection for a bilateral ankle disability, as secondary to his service-connected disabilities, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 6. The criteria for an initial rating in excess of 10 percent for the left knee disorder (limited flexion) are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5003-5260. 7. For the period on appeal, the criteria for a rating of 20 percent, but no higher, for a left knee disability (moderate instability) are met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from April 1969 to April 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from October 2014 (left knee), September 2015, and January 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran raised the issue of TDIU in submitted records. See 7/21/2015, VA 21-8940. As such, the TDIU matter is part and parcel of a claim for a higher evaluation. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Therefore, the issue of the Veteran’s entitlement to TDIU is properly before the Board. Additionally, in the Veteran’s VA Form 9s, he appealed the specific issues noted above. In this regard, the Veteran listed the issues he wished to appeal — increased rating for the left knee, and service connection for the right knee, bilateral shoulders, hips, ankles, feet, and an acquired psychiatric disorder. See 5/28/2019, VA Form 9 (marking box 8A and limiting the appeal). As such, the remaining issues from the statements of the case are not on appeal. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Entitlement to service connection for a lumbar disability. The Veteran asserts service connection for a lumbar disability, to include as due to his service-connected disabilities. The Veteran has a diagnosis of lumbar degenerative joint disease and intervertebral disc syndrome to include as reported at the March 2019 examination. As such, the first element of service connection is met. The March 2019 examiner provided a negative nexus opinion for the Veteran’s lumbar disabilities. In support, the examiner explained that his disabilities were not pathophysiologically or anatomically related to the Veteran’s service-connected left knee disability. His disabilities were chronic conditions that progressively worsened over time with aging. The examiner found that his disabilities were more likely caused by age, obesity, and occupational history. The Board finds this opinion to have probative value. The examiner provided an in-person examination, and provided alternative causes of the Veteran’s disabilities. The Veteran has submitted a private opinion that found that his lumbar disability was secondary to his service-connected knee disability. The physician explained that his knee disability causes biomechanical and kinematics distortion which impacts his stance and weight bearing which causes additional strain on his lower back. It was also reported that altered gait causes biomechanical changes that affect spine stability which cause pathophysiologic changes to the spine, including the bone, intervertebral discs and ligaments. She explained why she disagreed with the VA opinion finding that the disability was not secondary to his knee. In particular, she found the examiner appeared to not account for kinematic and biomechanics of weight bearing for the lower body which is shown by current medical literature. The Board finds this opinion to have probative value. The examiner reviewed the Veteran’s medical records, accounted for his lay testimony, and supported her conclusions with appropriate rationale and medical literature. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his lumbar disability is proximately due to his service-connected left knee disability and altered gait. 38 U.S.C. § 5107(b). The Board acknowledges the negative VA opinion, but when resolving reasonable doubt in favor of the Veteran, finds that the positive and negative evidence of record balances out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits”). Therefore, the Board finds that service connection for lumbar disabilities is warranted. 38 C.F.R. § 3.310(a). 2. Entitlement to service connection for a right knee disability. The Veteran asserts service connection for a right knee disability. He has a diagnosis of right knee enthesopathy. As such, the first element of service connection is met. The Veteran has submitted a private opinion for his right knee disability. She explained that his right knee disability was due to increased strain and stress from his left knee disability that had accumulated over the years. She cited studies that show injuries to one knee frequently cause overloading of the joints of the opposite leg and individuals experience abnormal loads of their weight. The Board finds this opinion to have probative value as the examiner reviewed the Veteran’s medical records, accounted for his lay testimony, and supported her conclusions with appropriate rationale and medical literature. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence tends to show that his right knee disability is proximately due to his service-connected left knee disability. 38 U.S.C. § 5107(b). Additionally, there is no negative nexus opinion for the Veteran’s right knee. Therefore, the Board finds that service connection for a right knee disability is warranted. 38 C.F.R. § 3.310(a). 3. Entitlement to service connection for a bilateral hips, ankles, and feet disabilities. The Veteran asserts service connection for bilateral hip, foot, and ankle disabilities. Although the Veteran has not received a diagnosis for a specific bilateral hip, bilateral foot, and bilateral ankle disabilities during the appeal period, “pain in the absence of a presently-diagnosed condition can cause functional impairment.” See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Thus, pain alone is sufficient to establish the existence of a present disability if the pain reaches the level of a functional impairment of earning capacity. See id. at 1367-68. Here, the private opinion shows that the Veteran has conditions manifested by chronic pain for his bilateral hips, bilateral feet, and bilateral ankles. Additionally, she has reported the chronic pain results in functional impairment for weight bearing and locomotion. His VA treatment records show that he previously worked in positions with extensive hours requiring standing and walking. In light of the private opinion finding substantial impairment for weight bearing and locomotion, the Board finds that his bilateral hip, foot, and ankle pain results in functional impairment of earning capacity and are considered disabilities for VA compensation purposes. The private opinion also provided positive nexus opinions for the Veteran’s conditions manifested by chronic pain for the bilateral hips, ankles, feet, all as due to his service-connected left knee disability. She explained that differences in hip, ankle, and feet have been reported when there is an asymmetric loading of impact force on the lower extremity, to include the knee joint. When there is asymmetric loading on the knee joint, the biomechanics of both lower limbs is affected to include the hips and ankles. For his feet, when there is an altered gait, increased stress is transmitted to the feet which significantly increased impacting tendons. As such, she concluded that his conditions manifested by chronic pain for his bilateral hips, ankles, and feet were secondary to his service-connected left knee disability. The Board finds this opinion to have probative value as the examiner reviewed the Veteran’s medical records, accounted for his lay testimony, and supported her conclusions with appropriate rationale and medical literature. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence tends to show that his disabilities manifested by chronic pain and functional impairment for earning capacity for the bilateral hips, feet, and ankles are proximately due to his service-connected left knee disability. 38 U.S.C. § 5107(b). Additionally, there is no negative nexus opinion for the disabilities. Therefore, the Board finds that service connection for bilateral hips, feet, and ankles disabilities is warranted. 38 C.F.R. § 3.310(a). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Arthritis due to trauma is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). Effective February 7, 2021, DC 5010 provides that traumatic arthritis is now to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes “additional functional loss i.e., ‘the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’ including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. “The question of whether a particular medical issue is beyond the competence of a layperson—including both claimants and Board members—must be determined on a case-by-case basis.” Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to “exercise.” Passive exercise “is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient’s own body.” Id. at 658. Active exercise is “motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part.” It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran’s joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. The competent evidence of record does not tend to indicate that the structural integrity of the Veteran’s service-connected joints is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran’s range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. It is acknowledged some of the examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development for this purpose or for obtaining retrospective opinions would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). As noted below, the examination reports contain evidence regarding the frequency, severity, and duration of the Veteran’s pain level during flare-ups per his report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran’s service-connected disabilities. As such, the Board finds that it has adequate competent evidence when viewed in total to assess the Veteran’s disability picture. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). 4. Entitlement to an initial rating in excess of 10 percent for a left knee disability. The Veteran receives a 10 percent rating for his left knee disability under DC 5003-5260. For reference, normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. 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. Additionally, DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; this warrants a 20 percent rating. DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating. Other DCs concern motion and under DC 5260 leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. Leg extension limited to 30 degrees warrants a 40 percent rating. Leg extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. Effective February 7, 2021, VA amended DC 5257. For recurrent subluxation or lateral instability, a 10 percent rating is assigned for a sprain, incomplete ligament tear or complete ligament tear causing persistent instability without prescribed assistive device or bracing for ambulation. A 20 percent rating is warranted when a) a sprain, incomplete ligament tear, or repaired complete ligament tear causes persistent instability; or b) an unrepaired or failed repair of a complete ligament tear causes peristent instability. A prescribed assistive device or bracing for ambulation is required. A 30 percent rating requires unrepaired or failed repair of complete ligament tear causing persistent instability and a prescription for both an assistive device and bracing for ambulation. For patellar instability, a 10 percent rating is assigned for a diagnosed condition that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted when there is a diagnosed condition with a prescription for either a brace, cane, or walker. A 30 percent rating requires a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription for brace and either a cane or a walker. Diagnostic Code 5262 was amended to now provide that “malunion of” the tibia and fibula is now rated under appropriate knee or ankle diagnostic codes. Additionally, a noncompensable rating is assigned for medial tibial stress syndrome (MTSS) or shin splints for treatment of less than 12 consecutive months, one or both lower extremities. 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 Codes 5257, 5262). Prior to February 7, 2021, the Board will apply the prior rating criteria. From February 7, 2021 onward, the Board applies the criteria that is more favorable to the Veteran. The Veteran underwent an examination for his knee in May 2009. Instability, pain, stiffness, and weakness were reported. He had moderately weekly flare-ups that lasted for hours. He had functional impairment with difficulty walking. He had normal flexion and extension. He had pain on range of motion testing. There was pain following repetitive motion, but no reduced range of motion following repetitive use testing. Muscle strength testing was normal (5/5). His Apley, valgum and varum stress, and Lachman testing were negative. He participated in an additional examination in March 2012. He had flare-ups with strong pain. His reported that his knee gave out and he had loss of strength in his left knee. He had flexion of 125 degrees and normal extension (zero degrees) both without pain. He was able to perform three times repetitive use testing with no further loss of range of motion. Muscle strength testing was normal (5/5). His joint stability testing (Lachman, Poster drawer, and medial-lateral instability) were normal. He did not have a history of recurrent patellar subluxation or dislocation. He did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. He did not have a meniscal condition or surgery. He regularly used a cane. In June 2015, an additional examination was performed. He reported flare-ups with prolonged ambulation, but did not have any functional loss or impairment. He had 130 degrees of flexion (with pain) and normal extension. His pain on motion contributed to functional loss. He had mild tenderness to palpation. He was able to perform three times repetitive use testing with no additional functional loss or range of motion. He was not examined immediately after repetitive use over time or during flare-ups, and the examination was neither medically consistent nor inconsistent with his statements describing functional loss. The examiner was unable to say without speculation if pain, weakness, fatigability, or incoordination significantly limited functional ability as all musculoskeletal disorders could potentially affect functional limitations, but it would be speculative based on a future event. Muscle strength testing was normal. He did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. His joint stability testing (Anterior, Posterior, Medial, Lateral) was normal. He did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. He regularly used a brace and cane. An examination was provided in August 2015. He reported flare-ups where prolonged standing or walking worsened his knee disability. At the time, he did not have any functional loss or impairment. His flexion was reduced to 130 degrees (with pain) and he had normal extension (zero degrees). He did not have pain on weight-bearing, but had mild tenderness to palpation. He was able to perform three times repetitive use testing and had his flexion reduced an additional 10 degrees to 120 degrees after three repetitions. He was not examined immediately after repetitive use over time or during flare-ups, and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss. The examiner was unable to say without speculation if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time as all musculoskeletal disorders could cause functional limitations and basing such limitations on a possible future event is speculative. Muscle strength testing was normal. He did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. His joint stability testing (Anterior, Posterior, Medial, Lateral) was normal. He did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. He did not have a meniscus condition. He regularly used a brace and constantly used a cane for knee stability. His medical records show instability and falls. After review of the competent and probative evidence, the Board finds that an initial rating in excess of 10 percent is not warranted for a left knee disability under DC 5260. In this regard, the Veteran has had greater than 120 degrees of flexion during the period on appeal. Even when accounting for the Veteran’s flare-ups and functional impairment, there is no indication that his flexion is limited to 30 degrees or less to warrant the next higher 20 percent rating. Moreover, his relevant medical records do not show flexion limited to 30 degrees or less. Therefore, a rating in excess of 10 percent is not warranted. Additionally, the Board finds that a rating for limited extension is not warranted under DC 5261. The Veteran has had normal extension (zero degrees) without pain during the period on appeal as shown on the examination reports. Such competent evidence tends to weight against a separate rating for extension. Moreover, during this period on appeal, the Board finds that a separate rating of 20 percent under DC 5257 is warranted as the evidence shows that the Veteran has knee instability based on his medical records and his lay testimony. See English v. Wilkie, 30 Vet. App. 347. 352-53 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). The Veteran has stated that his left knee gives out as reported at the 2009 examination. Additionally, he reported at the 2012 examination that he left knee has weakness. The Board acknowledges the medical testing showing normal stability in addition to normal muscle strength at the examinations. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity. However, when resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 20 percent is warranted for the period on appeal as he reported that his knee has given out, he has fallen, and he has weakness in his left knee. Additionally, higher ratings are not warranted at any point during this period on appeal for the his knee as the relevant examination reports, as detailed above, do not show positive instability testing of levels higher than 1+, such as 2+ (5-10 mm) or 3+ (10-15 mm). It also does not show a history of recurrent subluxation or lateral instability of the knee. Moreover, while the Veteran reported that his knee gives out, he did not assert that he falls frequently or that his knee is giving out frequently. Additionally, the Board has found that his self-reported knee weakness is included in the now assigned 20 percent rating. As such, a rating in excess of 20 percent for left knee instability is not warranted. Additionally, from February 7, 2021 onward, a rating of 30 percent is not warranted under the revised criteria as there is no indication that the Veteran has a medical prescription for his brace and cane. He does not have a complete ligament tear or a diagnosed condition involving the patellofemoral complex. As such, a rating of 30 percent is not warranted under the revised criteria for diagnostic code 5257. Furthermore, a rating under DC 5258 is not warranted for the Veteran’s left knee as he does not have a meniscal condition. In support, the examinations noted above specifically found that the Veteran does not now and had not ever had a left knee meniscus condition. Likewise, a separate rating is not warranted under DC 5259 as the competent evidence does not show removal of symptomatic semilunar cartilage. Additionally, ratings under 5256 and 5262 are also not warranted as the Veteran does not have ankylosis or impairment of the tibia and fibula. Lastly, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 10 percent rating already contemplates and compensates the Veteran for any functional loss due to pain affecting the left knee, to include any pain and limited motion. Deluca, 8 Vet. App. at 204-07. For example, as noted above, the medical reports reflect that he had pain. In light of the foregoing, the Board finds that increased ratings due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. In this regard, VA regulations state that the knee is considered a single major joint. 38 C.F.R. § 4.45. A higher rating under DC 5003 is not warranted as the Veteran has not had incapacitating episodes. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. The Veteran asserts service connection for a bilateral shoulder disability. His lay statements and private medical opinion suggest that his has chronic bilateral shoulder pain. Concerning the Veteran’s bilateral shoulder pain, in the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is generally satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 318, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that the Veteran satisfies the current disability requirement when a disability exists at the time the claim is filed or during its pendency, even if it resolved itself prior to adjudication). However, the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a “disability” under § 1110, because pain can cause functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). In light of Saunders, the Board finds that the Veteran reports bilateral shoulder pain which may indicate chronic pain and/or a persistent disability. As such, the Board finds that a remand is necessary so that an examination may be conducted of the Veteran’s bilateral shoulders to establish whether the Veteran has a current diagnosed disability, or in the alternative, symptoms including pain which reach to the level of functional impairment of earning capacity. If there is a finding of functional impairment, then a medical nexus opinion must be rendered. 3. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran asserts service connection for acquired psychiatric disorders. He has a current diagnosis of major depressive disorder, as reported at the July 2015 VA examination. See 7/17/2015, C&P Exam – PTSD. As such, the first element of service connection has been met. He underwent an examination for acquired psychiatric disorders in July 2015. The examiner provided a negative nexus opinion. The examiner stated that it was his opinion that the disability was not related to or aggravated by his service-connected disability. The Veteran’s representative has asserted that his psychiatric examination was inadequate in considering chronic pain causing his psychiatric disorders. The Board agrees and finds the July 2015 examination to be insufficient for the Board to address service connection for an acquired psychiatric disorder. In this regard, the opinion is conclusory without rationale. Additionally, the Veteran’s representative has since provided medical literature associating acquired psychiatric disorders with chronic pain. See 11/3/2020, Medical Treatment Record – Non-Government Facility – Literature. The Board would like a mental health professional to consider this medical literature. As such, the Board finds that an addendum opinion is warranted. 4. Entitlement to a TDIU is remanded. Entitlement to TDIU has been raised during the period on appeal. See 7/21/2015, VA 21-8940. The Veteran does not currently meet the schedular criteria for TDIU. However, the Board finds that entitlement to TDIU is intertwined with the above granted service connection claims. Therefore, the Board finds adjudication of TDIU would be premature because it is inextricably intertwined with the above granted claims and pending assignment of their corresponding rating percentages by the AOJ. Consideration of the TDIU must be deferred pending implementation of the awards granted herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, this issue is deferred pending the receipt of additional evidence, as directed below. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All attempts to obtain any VA treatment records must be documented. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. All requests and responses for the private records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completing #1 and regarding the Veteran’s bilateral shoulder disability, schedule the Veteran for an examination. The examiner is to provide a diagnosis which accounts for the Veteran’s present symptoms for his bilateral shoulders. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as loss of range of motion, pain, or instability. Complete the “Functional Impact” section of the report. Then, address whether: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral shoulder disability was caused by a disease or injury in service? (b.) If no to question (a), then is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral shoulder disability is either 1) proximately due to OR 2) aggravated by any service-connected disability? 3. After completing #1, obtain an addendum opinion due to the ongoing national public health emergency. Send the file to an appropriate mental health examiner (licensed psychologist and/or psychiatrist), and ask the mental health clinician to review the claims file. If the clinician needs an in-person examination, then schedule one. Ensure the examiner has access to the claims file, to include a copy of this Remand. The examiner is to: --Identify any acquired psychiatric disability, to include depression or any other psychiatric disorder since January 2015. Then, the mental health specialist, for each current psychiatric disability, is to address and to provide an opinion regarding the following: (a.) It is at least as likely as not (50 percent or greater probability) that any of the Veteran’s current (present at any time since January 2015) psychiatric disabilities, in whole or part, had their onset in service, or are otherwise the result of a disease or injury in service? (b.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s psychiatric disability is either 1) proximately due to OR 2) aggravated by the Veteran’s service-connected disabilities, to include chronic pain associated with his many orthopedic disabilities? **The examiner must address the Veteran’s submitted medical articles addressing depression and pain.** See 11/3/2020, Medical Treatment Record – Non-Government Facility – Literature. The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. 4. Inform EACH examiner that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Lastly, the AOJ is to implement, to include assigning disability ratings and effective dates, this Board decision granting service connection for the right knee, lumbar, bilateral hip, ankle and feet disabilities. Then, readjudicate the TDIU matter and issue proper notification of the determination. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.