Citation Nr: 21028857 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-23 140 DATE: May 12, 2021 ORDER A rating in excess of 10 percent for left knee degenerative joint disease (DJD), limitation of flexion is denied. A separate rating of 10 percent for left knee DJD instability is granted. Service connection for an acquired psychiatric disorder is granted. REMANDED Service connection for a lumbar spine disorder. Service connection for a cervical spine disorder. Service connection fora thoracic spine disorder. Service connection for erectile dysfunction. Service connection for cephalgia. Service connection for a left-hand disorder manifested by motor loss and decreased grip strength. Service connection for a right-hand disorder manifested by motor loss nad decreased grip strength. Service connection for paresthesia of the right upper extremity. Service connection for paresthesia of the left upper extremity. Service connection for sciatic pain of the right lower extremity. Service connection for sciatic pain of the left lower extremity. Entitlement to a total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran had active duty from November 1981 to October 1984 with additional periods of Reserve service. 2. Left knee DJD has been manifested by objective evidence of limitation of motion with painful flexion of more than 30 degrees; competent objective reports of left knee instability and weakness have been shown. 3. Resolving all reasonable doubt in his favor, an acquired psychiatric disorder was incurred in service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee DJD, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003, 5257-5260 (2020); 38 C.F.R. §§ 4.71a, DCs 5003, 5257-5260 (2021). 2. The criteria for a separate rating of 10 percent for left knee DJD instability have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, 5003, DC 5257 (2020); 38 C.F.R. §§ 4.71a, DC 5257 (2021). 3. An acquired psychiatric disorder was incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.3 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board remanded the issues in September 2020. The RO has rebuilt the claims file and made efforts to obtain all service and VA treatment records under both the correct and incorrect social security numbers, as outlined in the September 2020 Board remand. The appeal returns to the Board for further adjudication. Increased Rating Claims 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. While this appeal was pending, the rating criteria for musculoskeletal disabilities was amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). If the amended criteria are more favorable, the implementation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. If the pre-amended criteria are more favorable, VA can apply the pre-amended criteria for the period prior to and from the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's appeals under the pre-amended criteria prior to February 7, 2021, and both the pre-amended and amended criteria since February 7, 2021. The criteria that is more favorable will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran is currently rated at 10 percent for DJD under DCs 5003-5260. Specifically, his rating of 10 percent is for X-ray evidence or arthritis as well as pain upon flexion. Under the pre-amended regulations, a 10 percent rating was warranted when the objective medical evidence showed: slight recurrent subluxation or lateral instability; symptomatic removal of semilunar cartilage; malunion of the tibia and tibia with slight knee or ankle disability; or, genu recurvatum. Under the revised criteria, a 10 percent rating is warranted when the objective medical evidence shows: instability with sprain, incomplete ligament tear, or complete ligament tear causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation; patellar instability with a diagnosed condition involving the patellofemoral complex with recurrent instability that does not require a prescription from a medical provider for a brace, cane, or walker; or, medial tibial stress syndrome (MTSS), or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. Under the pre-amended regulations, a 20 percent rating was warranted when the objective medical evidence showed: moderate recurrent subluxation or lateral instability; dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; flexion of the leg limited to 30 degrees; extension of the leg limited to 15 degrees; malunion of the tibia or fibula with moderate knee or ankle disability; or, degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. Under the revised criteria, a 20 percent rating is warranted when the objective medical evidence shows: a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; one of the following: - sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or - unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation flexion of the leg limited to 30 degrees; extension of the leg limited to 15 degrees; MTSS, or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; or, degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. Turning to the evidence, the medical evidence does not support a separate rating for symptomatic removal of semilunar cartilage, malunion of the fibula and tibia, genu recurvatum. Specifically, September 2012, September 2017, October 2018, and December 2018 VA examiners all separately found that he did not have removal of semilunar cartilage or any left knee meniscal condition, there was no malunion of the fibular and tibia, and no genu recurvatum. Similarly, a review of VA and private medical records similarly shows lack of these symptoms. As such, a separate rating for each is not supported by the evidence. However, the evidence reflects instability of the left knee. Specifically, a February 2012 private physician found that the Veteran's left knee would give out at random. A September 2012 VA examiner recounted that pain and tenderness were such that he was unable to test joint stability, although some weakness was measured (3 out of 5). The Veteran reported to a September 2017 VA examiner that his left knee swelled, warmed, buckled, and locked. The examiner noted some left knee atrophy, and although no joint instability was noted on the exam, the Veteran related that he constantly used a cane because of his left knee. The October 2018 VA examiner found that the Veteran was unable to perform repetitive use bilaterally because of fear of pain. Muscle strength was measured 4/5 bilaterally, and although instability was not noted, the Veteran stated that he constantly used a cane, and occasionally a brace, for stability. A December 2018 VA examiner found no instability, but again found regular use of a cane for the past 10-years for stability. As for instability under the pre-amended criteria, the Veteran is competent to report knee instability and he has reported that he had experienced weakness, locking, and giving away, and continually used a cane to help with left knee instability throughout the appeal period. The examinations report some weakness even if largely not finding instability. In sum, there are both competent lay complaints of instability and some supporting medical evidence. As such, resolving all reasonable doubt in his favor, a 10 percent rating for slight lateral instability under DC 5257 is warranted for the entire appeal period. A rating of 20 percent for moderate instability is not warranted, as the VA examiners primarily found that the Veteran did not have either lateral instability or recurrent subluxation, and a review of the VA and private medical records fail to show regular medical evidence of moderate levels of instability or subluxation. Based on the above, the medical evidence does not support a 20 percent rating for moderate level of impairment. Next, a higher rating for dislocated semilunar cartilage is not warranted because, as noted above, September 2012, September 2017, October 2018, and December 2018 VA examiners all separately found there was no dislocated semilunar cartilage nor any meniscal condition in his left knee. VA and private medical records similarly fail to show any left knee meniscal condition. As such, the medical evidence does not support a higher rating under DC 5258. Similarly, the September 2012, September 2017, October 2018, and December 2018 VA examiners found no malunion with moderate impairment of the fibula and tibia. This was also reflected in the Veteran's VA and private medical records. As such, the medical evidence does not support a higher rating for malunion of the tibia and fibula with moderate knee or ankle disability. Next, a higher rating is not warranted under DC 5003 for degenerative arthritis. Although X-ray evidence has shown left knee DJD for the duration of the appeal period, no medical professional has found that the involvement of two or more major or minor joint groups caused occasional incapacitating exacerbations. September 2012, September 2017, October 2018, and December 2018 VA examiners did not find that that his arthritis involved multiple major or minor joint groups with occasional incapacitating exacerbations. Similarly, there is no such indication in his VA or private medical records. As such, the medical evidence does not support a higher rating DC 5003. As to limitation of motion, a February 2012 private physician stated that the Veteran's left knee flexion was 90 degrees with significant pain. A September 2012 VA examiner found left knee flexion was to 0 to 50 degrees, with pain at 50, and extension was 5 degrees with pain at 5. He declined to try and extend his knee further because he was afraid it would hurt more, and also declined to do repetitive use testing for that same reasoning. A September 2017 VA examiner found his left knee flexion was 0 to 50 degrees, with pain on flexion, and extension from 50 to 0 degrees. The Veteran was unable to perform repetitive use with his left knee. The examiner failed to estimate how flareups or repeated use over time would impact range of motion, An October 2018 VA examiner measured left knee flexion as 0 to 90 degrees, with extension 90 to 0 degrees, with pain on both, and difficulty moving the knee due to pain. The Veteran was unable to perform repetitive use bilaterally because of fear of pain. Again, the examiner did not estimate additional range of motion restriction due to repeated use over time or flareups because he stated there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions. Finally, a December 2018 VA examiner measured left knee flexion as 0 to 125 degrees, and extension 125 degrees to 0, with pain on flexion. The examiner stated there was no additional loss after repetitive use and not loss of use with repetitive use over time or flareups. A review of his VA and private medical records show no other range of motion measurements other than the private February 2012 evaluation mentioned above. At no point was flexion limited to 30 degrees, nor extension to 15 degrees. As such, a higher rating for limitation of motion is not warranted. As to the amended rating criteria, a 20 percent rating under DC 5258 for dislocated semilunar cartilage, for limitation of motion under DCs 5260 and 5261, and for incapacitating episodes of degenerative arthritis under DC 5003 are unchanged as applied for this appeal. As such, the analysis above applies to both versions of the regulation, and a higher rating is not warranted. As for a higher rating under the amended DC 5257, no VA examiners at any point during the appeal period, nor any VA or private physicians have diagnosed the Veteran with a sprain, an unrepaired, or failed repair of a complete ligament tear. Specifically, September 2012, September 2017, October 2018, and December 2018 VA examiners did not find ligament damage or diagnose the Veteran with a sprain. VA and private medical records both before and after implementation failed to show a left knee sprain or ligament damage. Additionally, for patellar instability, the amended regulations require a diagnosed condition involving the patellofemoral complex which consists of the quadriceps tendon, the patella, and the patellar tendon. Those same examiners did not diagnose the Veteran with any condition involving the patellofemoral complex, nor did VA or private medical records either prior or after implementation. As such, the medical evidence does not support a higher rating under amended DC 5257. Next, as to a higher rating under DC 5262 for MTSS, at no point during the appeal period does the evidence reflect a diagnosis of MTSS or shin splints. September 2012, September 2017, October 2018, and December 2018 VA examiners all found no diagnosis of shin splints. VA and private medical records since implementation similarly reflect no diagnosis. Thus, the medical evidence necessarily fails to show treatment for no less than 12-consecutive months. Therefore, the medical evidence does not support a higher rating on this basis. The Board has also considered the Veteran's lay statements that his disability is 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 left knee disability 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 this disability is evaluated. Moreover, as the examiners had the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base their conclusions, the Board affords these 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, other than the grant of a separate 10 percent rating for left knee instability, the benefit of the doubt rule is not applicable, and the appeal is denied. Service Connection for an Acquired Psychiatric Disorder Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Turning to the evidence, the first element of service connection a current disability is met, as a private psychologist diagnosed the Veteran with generalized anxiety disorder and depressive disorder not otherwise specified in a February 2012 evaluation. The psychologist found some evidence of suspected response bias, such that the evaluation may have overestimated some of his psychological and cognitive difficulties, but still stood by the above diagnosis. As such, the first element of service connection is met. As to an in-service incurrence, the Veteran described the fear and anxiety he experienced when serving in Korea, as he was afraid of North Koreans attacking at any time. Additionally, he described a fight between fellow serviceman in which one hit another with a wrench, but stated he was dissuaded from filing a witness statement by his superiors. Finally, he stated his commanding officer demeaned him and gave him tougher assignments because of his race. Although these events are not shown in his STRs or military personnel records, they are not contradicted by other evidence of the record, and the Veteran is competent to report such incidents. As such, to this extent only, the second element is met. As to a medical nexus, a February 2012 private consulting psychologist related the Veteran's current psychiatric disorder to service. Specifically, she found it was as likely as not his symptoms were related to service as he first started experiencing anxiety and depressive symptoms while in service. A February 2012 private evaluation from a chiropractor also found the Veteran had symptoms of posttraumatic stress disorder (PTSD) that were directly and causally related to service, but also stated that he did not treat PTSD, and deferred to specialists. The chiropractor's opinion is assigned lesser probative value as psychiatry is admittedly not his specialty and he provided opinions on multiple orthopedic-related complaints. On the other hand, the second private opinion was from a licensed psychologist. Although it does not appear that she is the Veteran's treatment provider, the opinion was probative. As there is no contradictory medical opinion of record, the medical evidence supports the appeal and the claim is granted. 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). REASONS FOR REMAND As to the remaining issues on appeal, additional development is necessary. Specifically, the Veteran submitted a February 2012 private medical opinion which claimed that each of the remaining service connection issues were caused by either falls during training runs, 25-mile marches, or were secondary to a disability directly caused by those events. The various rationales provided by the diagnostic consultant were not uniformly well-supported, and a review of the STRs fail to show he was treated for any of these disorders. However, the Veteran has been since service-connected for a right knee disability that was derived from the same events the chiropractor opined were responsible for his back disabilities. Additionally, the chiropractor provided diagnoses for all of the disabilities above. When there is some evidence of a current disability, an in-service incurrence, and a medical nexus, the duty to assist requires that a medical opinion be obtained. Here, although the private evaluation is not sufficiently supported to grant service connection, it does give an indication of all three elements. There is insufficient competent medical evidence to make a decision on these issues. As for entitlement to a TDIU, the issue is inextricably intertwined with both the RO rating the newly service-connected issue to determine whether the Veteran now meets the scheduler threshold, as well as the service connection issues remanded for further development. Finally, September 2020 VA medical records show that the Veteran had been treated by a private doctor through his wife's insurance. It is unclear if the RO has made appropriate steps in attempting to obtain these medical records. Upon remand, they must make reasonable efforts to obtain these private records. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Make reasonable efforts to obtain the private medical records referenced by the Veteran in September 2020 VA treatment records. 3. Assign a rating for the issue service-connected in this appeal. 4. Direct the claims file to a clinician to address the etiology of the issues still on appeal. The clinician is asked to answer the following: (a.) Is it at least as likely as not (50 percent or greater probability) the Veteran has a current lumbar spine disorder that was incurred in service? (b.) Is it at least as likely as not (50 percent or greater probability) the Veteran has a current cervical spine disorder that was incurred in service? (c.) Is it at least as likely as not (50 percent or greater probability) the Veteran has a current thoracic spine disorder that was incurred in service? (d.) Is it as likely as not (50 percent or greater probability) that the Veteran has erectile dysfunction which is proximately due to or aggravated beyond its normal course by a service-connected disability? (e.) Is it as likely as not (50 percent or greater probability) that the Veteran has cephalgia which is proximately due to or aggravated beyond its normal course by a service-connected disability? (f.) Is it as likely as not (50 percent or greater probability) that the Veteran has a left-hand disorder manifested by motor loss and decreased grip strength which is proximately due to or aggravated beyond its normal course by a service-connected disability? (g.) Is it as likely as not (50 percent or greater probability) that the Veteran has a right-hand disorder manifested by motor loss and decreased grip strength which is proximately due to or aggravated beyond its normal course by a service-connected disability? (h.) Is it as likely as not (50 percent or greater probability) that the Veteran has paresthesia of the right upper extremity which is proximately due to or aggravated beyond its normal course by a service-connected disability? (i.) Is it as likely as not (50 percent or greater probability) that the Veteran has paresthesia of the left upper extremity which is proximately due to or aggravated beyond its normal course by a service-connected disability? (j.) Is it as likely as not (50 percent or greater probability) that the Veteran has sciatic pain of the left lower extremity which is proximately due to or aggravated beyond its normal course by a service-connected disability? (k.) Is it as likely as not (50 percent or greater probability) that the Veteran has sciatic pain of the right lower extremity which is proximately due to or aggravated beyond its normal course by a service-connected disability? The clinician is asked to consider the Veteran's lay statements that the claims were incurred in service or are due to service connected knee disabilities. For the opinions addressing secondary service connection, the clinician is asked to provide separate opinions for both causation and aggravation. All opinions must be accompanied by a well-reasoned rationale. 5. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, 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.