Citation Nr: 21029108 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-08 679 DATE: May 12, 2021 ORDER Entitlement to an evaluation of 70 percent, but no higher, for unspecified depressive disorder is granted. Entitlement to an evaluation in excess of 10 percent for right knee chondromalacia is denied. Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia is denied. REMANDED Entitlement to service connection for a left hip condition, to include as secondary to bilateral knee chondromalacia, is remanded. Entitlement to service connection for a right hip condition, to include as secondary to bilateral knee chondromalacia, is remanded. Entitlement to service connection for degenerative arthritis of the spine is remanded. Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for an acquired psychiatric disorder, other than unspecified depressive disorder, but to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to an evaluation in excess of 10 percent for pseudofolliculitis barbae (PFB) is remanded. FINDINGS OF FACT 1. The Veteran's unspecified depressive disorder has manifested in symptoms causing impairment most closely approximating occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but not total occupational and social impairment. 2. The Veteran's right knee disability is manifested by subjective complaints of pain with flare-ups; objective findings include flexion to, at worse, 105 degrees and normal extension; however, muscle atrophy, ankylosis, recurrent subluxation, lateral instability, recurrent effusion, or joint instability have not been shown. 3. The Veteran's left knee disability is manifested by subjective complaints of pain with flare-ups; objective findings include flexion to, at worse, 75 degrees due to flare ups, and normal extension; however, muscle atrophy, ankylosis, recurrent subluxation, lateral instability, recurrent effusion, or joint instability have not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased evaluation of 70 percent, but no higher, for unspecified depressive disorder have been met. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for entitlement to an evaluation in excess of 10 percent for right knee chondromalacia have not been met. 38 U.S.C§§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 3. The criteria for entitlement to an evaluation in excess of 10 percent for left knee chondromalacia have not been met. 38 U.S.C§§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1975 through September 1979 and from January 1983 through October 1986. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to an evaluation of 70 percent, but no higher, for unspecified depressive disorder is granted. For the reasons discussed below, the Board finds that the Veteran's unspecified depressive disorder throughout the appeal period manifested in symptoms causing occupational and social impairment in most areas, warranting the assignment of a 70 percent rating from his date of claim. The Veteran's unspecified depressive disorder is rated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9435. Under the applicable diagnostic criteria, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. When determining the appropriate disability evaluation under the general rating formula, the primary consideration of the Board of Veterans' Appeals (Board) is a Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). A Veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id at 117-18. The symptoms listed are not exhaustive, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering not only the presence of certain symptoms [,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d at 117; 38 C.F.R. § 4.130. The Veteran was seen during VA treatment in October 2015 for complaints of depression that had been ongoing reportedly since the sudden passing of his infant daughter when he was age 20. He stated that he felt as though he never coped effectively with his daughter's death. Regarding his current symptoms, he reported depression, constant anxiety, social isolation, pessimism, rumination, anhedonia, intermittently poor sleep, poor stress tolerance, and poor concentration. He stated that he fantasized at times about death and joining his daughter but denied active suicidal thought or planning. He also reported feelings of blame toward his infant daughter's mother and that he also felt personal guilt. He was married two times and had a total of seven children between the two marriages. He denied having mania, obsessive compulsive disorder, and psychosis. He had anxiety all the time related to family, work, and coping with the loss of his daughter. He felt physically keyed up, tremulous, and had rapid thoughts frequently. A mental status examination revealed that he was fairly groomed, had good hygiene, and casually dressed. He was calm and cooperative. He had dysthymic mood, monotonous speech, dysthymic affect, and ruminative thought process. He was tearful. He had no delusions, phobias, obsessions, or suicidal or homicidal ideations. His thought process was ruminative, linear, goal-directed, and typically future-oriented. He denied auditory and visual hallucinations and paranoia. His insight was fair and his judgment good. He functioned in work and social settings at great expense, unable to tolerate much additional stress beyond his grief. The Veteran was afforded with a VA posttraumatic stress disability benefits questionnaire in September 2016. He was diagnosed with unspecified depressive disorder related to grief. The examiner indicated that level of impairment associated with the Veteran's mental diagnoses was occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. He lived with his second wife since 1989 and had one biological child from this union. He reported that he had children and grandchildren who come and go. He worked as an IT supervisor. He served in this capacity since 2008. He was an IT consultant when he left service. He reported work-related stress due to work demand and staff issues with their verbal threats due to their mental health issues. He had symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Records for subsequent VA mental health treatment received by the Veteran show that the Veteran was followed in grief therapy for ongoing depression through September 2016. During a September 2016 mental health examination, the Veteran reported similar symptoms as those reported during previous VA treatment, to include depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The Veteran reported during VA mental health treatment in September 2017 that he felt ongoing depression and anxiety and that he had difficulty dealing with disrespectful and insubordinate employees. On December 2020 VA mental disorders disability benefits questionnaire examination, the examiner reported that the Veteran's mental disorder caused occupational and social impairment with reduced reliability and productivity. The Veteran reported that he was still married and described the relationship as "okay." He noted that COVID had been stressful. He reported having an "okay" relationship with his sons. He had a good network of friends. He reported difficulty with staying asleep and obtaining only three hours of sleep every day. He was fatigued and sore upon awakening. He described his mood as "okay'" He retired in May 2019 and engaged in home improvement projects and watched movies. There were no post-military/current legal issues or problems with violence. He denied illicit drug use. He reported drinking one beer per month with dinner. He had symptoms of depressed mood, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Behavioral observations showed that his mood was dysphoric, and his affect was congruent with his mood. His thought content was devoid of suicidal or homicidal ideations, intentions, or plans. His though processes were logical, coherent, and goal oriented. His cognitive functions were normal. He was oriented to person, place, time, and purpose. His insight and judgment were intact. He did not have any other symptoms attributable to mental disorders. He was capable of managing his financial affairs. The examiner added that COVID put the Veteran in a state of paranoia. He reported that there were times he became sad while watching television. He reported feeling depressed and wishing he and his children were closer. He noted this was due to divorcing the first wife. He had challenges with his wife and stepchildren. He felt that a piece of his heart was taken away after his daughter died. He claimed that his concentration and memory were intact. He denied having anxious features. He denied suicidal ideations. He was administered the BDI to assess for depression. His score of (19) was indicative of moderate depression. The examiner indicated that these results were consistent with the report. In a December 2020 individual unemployability statement, the examiner indicated that the Veteran had intrusive thoughts that would interfere with his ability to stay focused on the task at hand. He had significant difficulty functioning around other people. He had difficulty functioning as a team member and felt uncomfortable around others. Also, his sleep was so disrupted that he was usually fatigued at work, which made concentration and focus on work assignments difficult. The Board finds that throughout the period on appeal, the evidence discussed above shows that the Veteran's unspecified depressive disorder has manifested in symptoms causing occupational and social impairment in most areas, most closely approximating the level of disability contemplated by the 70 percent rating. The Veteran has exhibited a desire to join his daughter in death and fantasized about death. Although he retired, his disability appears to cause difficulty in adapting to stressful circumstances including work or a work-like setting. He has functioned in work and social settings at great expense, unable to tolerate much additional stress beyond his grief. He has had difficulty dealing with disrespectful and insubordinate employees. He has intrusive thoughts that would interfere with his ability to stay focused on the task at hand. He has significant difficulty functioning around other people. He has difficulty functioning as a team member and feels uncomfortable around others. Also, his sleep was so disrupted that he was usually fatigued at work, which made concentration and focus on work assignments difficult. Other debilitating symptoms include difficulty in establishing and maintaining effective work and social relationships, constant anxiety, depression, social isolation, pessimism, rumination, anhedonia, chronic sleep impairment, poor stress tolerance, poor concentration, guilt, and rapid thoughts. He reports feeling physically keyed up and tremulous. His speech is monotonous. He has disturbances of motivation and mood. His mood has been described as dysphoric, dysthymic, and depressed. His affect has been described as flattened, dysthymic, or congruent with his mood. He has been tearful, and COVID-19 has put him in a state of paranoia. Collectively, these symptoms are of the type, extent, severity, and/or frequency that more nearly approximate occupational and social impairment with deficiencies in most areas of the Veteran's life, including work, school, family relations, judgment, thinking, and mood. See Mauerhan, 16 Vet. App. 436 (2002). That stated, the evidence of record does not demonstrate that the Veteran's unspecified depressive disorder is so severe as to manifest in total occupational and social impairment. Although he reported feeling depressed, wishing he and his children were closer, and having challenges with his wife and stepchildren, he has described his relationships with his wife and sons as "okay." He reports that he has a good network of friends. Thus, the evidence does not establish a total social impairment. The Board has considered that the Veteran exhibits difficulty in adapting to stressful circumstances including work or a work-like setting, has had difficulty dealing with disrespectful and insubordinate employees, has difficulty with staying focused, and has had difficulty in establishing and maintaining effective work relationships and functioning as a member of a team. However, the evidence also demonstrates that the Veteran has been able to maintain his longstanding employment as an IT supervisor and he retired in May 2019. He now engages in home improvement projects. Therefore, total occupational impairment has not been shown. He has not been found to be incapable of handling his own funds. Additionally, although he has experienced poor concentration, ruminating thoughts, chronic sleep impairment, monotonous speech, and fantasizing thoughts about death, and COVID-19 makes him paranoid, he does not generally demonstrate gross impairment in behavior, thought processes or communication. His insight is fair and his is judgment good. There is no evidence of any delusions, and/or hallucinations, and he has been cooperative with treatment providers. He reports that he has no phobias or obsessions. There have been no post-military/current legal issues or problems with violence. The evidence does not show he is in persistent danger of hurting himself or others as he has repeatedly denied having suicidal or homicidal intentions. Memory loss for names of close relatives, own occupation, or name, has not been reported or shown. There is no indication that he has been unable to intermittently perform activities of daily living. He has been fairly groomed and casually dressed and has practiced good hygiene. Under these circumstances, the Board finds that the Veteran is not shown to have experienced symptoms of the type, extent, and frequency or severity to result in both total occupational and social impairment as contemplated by the rating criteria for a 100 percent rating. As such, an increased rating to 70 percent, but no higher, for the Veteran's service-connected unspecified depressive disorder is granted. 2. Entitlement to an evaluation in excess of 10 percent for right knee chondromalacia is denied. 3. Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia is denied. The Veteran's bilateral knee chondromalacia has been rated 10 percent disabling pursuant to the criteria under 38 C.F.R. § 4.71a, DC 5260, applicable to limitation of flexion. The Veteran claims entitlement to a higher disability rating. The Board observes that the schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee joint, have undergone revision during the pendency of this appeal. Specifically, and as relevant to this case, revisions to Diagnostic Code 5003, 5010, and 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021). Prior to February 7, 2021, Diagnostic Code 5010, instructed the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under the revised criteria, Diagnostic Code 5010 applies only to post-traumatic arthritis, which is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003. Under this code, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by [*22] limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As it pertains to recurrent subluxation or instability of the knee, and as noted above, revisions to Diagnostic Code 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Because these changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's service-connected knee disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110(g). Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for 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. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See DC 5257 (Effective February 7, 2021). Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). VA's General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Here, VA treatment records show that the Veteran has been treated periodically for continuing complaints of knee pain. In September 2015, he described anterior knee pain that was worsened by strenuous activity. A physical examination conducted at that time revealed crepitus but normal ranges of motion in both knees. During an April 2016 examination, the Veteran reported ongoing pain in his knees with flare-ups that occurred after using stairs, walking long distances, and being seated for prolonged periods. His knees did not give way and there was no locking. He did not use steroid injections and did not have surgery. He stated that he occasionally used a brace when he played basketball but had not played basketball in 15 years. He reported that he was employed as an IT supervisor and that his work involved him being seated for most of the day. He stated that he needed to sit up frequently in order to stretch his legs. A physical examination of the knees revealed that the Veteran had reduced flexion to 105 degrees and full and normal extension in both knees. Pain was noted on examination but did not result in functional loss. There was no evidence of pain with weight bearing. There was objective evidence of joint line tenderness to palpation and crepitus. There was no additional functional loss or range of motion after three repetitions. X-rays of the knees revealed findings that were consistent with arthritis. Pain caused functional loss with repeated use over time and during flare-ups, but the examiner was unable to state without mere speculation in terms of range of motion. Muscle strength testing was 5/5 on flexion and extension. There was no muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, recurrent effusion, or joint instability. He never had recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial, fibular impairment, and/or any meniscus conditions. There were no surgical procedures. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's knees. There were no scars. He did not use any assistive devices. Functioning was not so diminished that amputation would equally serve the Veteran. The examiner stated that there was no evidence to suggest that the Veteran's service-connected condition of chondromalacia patella is connected to his knee osteoarthritis. In a January 2017 addendum, the examiner added that pain was present during weight bearing and was present during passive and active motion. Still, the examiner observed that the pain symptoms were not productive of further functional loss. The examiner added that chondromalacia and osteoarthritis had similar symptoms; it was difficult to speculate which symptoms were attributable to either condition. Repeated examinations conducted during VA treatment from January through March of 2017 revealed continued right knee flexion to no less than 105 degrees. Left knee flexion was to 120 degrees. Bilateral leg extension remained full. Muscle strength in the right leg was decreased during flexion to 3/5 and during extension to 3+/5 during extension. Muscle strength in the left leg was decreased to 3+/5 during flexion and 4/5 during extension. Still, demonstrated gait was normal. The Veteran was treated again for ongoing knee pain in September 2017. There were no inflammatory changes and he had full extension and flexion beyond 110 degrees. There was no instability pattern and no infusion. He was issued a cane for ambulating. January and February 2018 kinesiotherapy notes reported knee range of motion as withing full limits on flexion and extension. Muscle strength as 5/5 on flexion and extension. During a December 2020 VA examination, the Veteran reported a progressive worsening of his bilateral knee chondromalacia condition. He treated his knees with Tylenol and naproxen. He described his pain as intermittent dull aching pain worse in the cold season. He did not have flare-ups, functional loss, or functional impairment of the knee or lower leg. Range of motion on the right side was 0 to 120 degrees on flexion; extension was 120 to 0 degrees. Range of motion on the left side was 0 to 125 degrees on flexion; extension was 125 to 0 degrees. Bilaterally, there was pain noted on examination on flexion and extension, but it did not result in/cause functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated tissue. There was no evidence of pain with weight bearing or objective evidence of crepitus. He was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or flare-ups. There were no additional contributing factors of disability. Muscle strength testing revealed bilateral flexion and extension was 5/5 with no reduction in muscle strength. There was no muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. There was np joint instability. He did not have and never had recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. He never had a meniscus condition. There were no surgical procedures. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's knees. There were no scars. He did not use any assistive devices. Functioning was not so diminished that amputation would equally serve the Veteran. The knee conditions impacted his ability to perform any type of occupational task. Although he was retired, the examiner noted that the Veteran would miss 0-1-week work time in the past 12 months. The Veteran reported that his bilateral knee condition caused pain that impaired prolong ambulation. There was objective evidence of pain on passive range of motion and when the joint was used in non-weight bearing. He was diagnosed with osteoarthritis of the bilateral knee as an expected progression of his bilateral knee chondromalacia condition. Based on the evidence of record the Board finds the Veteran's current rating of 10 percent for limitation of flexion best captures his disability symptoms. The medical evidence of record has consistently shown the Veteran has, at worse, flexion from 0 to 105 degrees, bilaterally. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or flare-ups. He described his pain as intermittent dull aching pain worse in the cold season. The Board considers the Veteran's competent, credible lay statements that he has ongoing pain in his knees with flare-ups that occurred after using stairs, walking long distances, and being seated for prolonged periods. Nevertheless, the Board finds the Veteran's description of his symptoms do not describe limitation of flexion to a point such that an increase is warranted. Though the Veteran had consistent complaints of pain, his bilateral knees have presented with, at worse, flexion from 0 to 105 degrees. The Veteran is also not entitled to a separate compensable rating under DC 5261, limitation of extension. The Veteran's VA treatment records as well as April 2016 and December 2020 VA examinations all showed normal extension. The Board considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, irrespective of whether they have been raised by the Veteran, his representative, or otherwise by the record, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, there is no evidence of any right or left knee ankylosis, impairment of the tibia and fibula, or genu recurvatum to support higher or separate ratings under DCs 5256, 5262, or 5263. See VA treatment records as well as April 2016 and December 2020 VA Examination Reports. The Board must also consider additional functional loss due to symptoms such as pain, repetitive motion, and flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 44; Correia, 28 Vet. App. at 169-170; Sharp, 29 Vet. App. at 33. The Veteran has provided competent and credible reports regarding using stairs, walking long distances, and being seated for prolonged periods. The Veteran has been awarded a 10 percent disability rating for limitation of flexion. The Board finds the 10 percent rating appropriate when considering the Veteran's described pain, flare-ups, and symptomatology, but that a higher 20 percent rating is not warranted. While the Veteran endorsed flare-ups at the April 2016 VA examination, it was noted that the Veteran was able to perform repetitive testing without additional loss of motion. The April 2016 VA examiner estimated that, during a flare-up, pain caused functional loss with repeated use over time and during flare-ups, however, the examiner was unable to state without mere speculation in terms of range of motion. The Veteran was therefore afforded a new VA examination. During the December 2020 VA examination, and the examiner noted the Veteran's reports and that he was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or flare-ups. Sharp, supra. As such, the evidence does not demonstrate that a higher evaluation is warranted in this case due to functional loss. The VA treatment records as well as the April 2016 and December 2020 VA examinations show that the Veteran never had recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), instability, subluxation and/or any meniscus conditions. No abnormalities were reported with the semilunar cartilage. The April 2016 VA examination noted that there was no locking. A September 2017 VA treatment record noted that there was no instability pattern. The April 2016 and December 2020 VA examinations showed that there was no history of recurrent subluxation, lateral instability, recurrent effusion, or joint instability. Additionally, VA examinations noted that there were no surgical procedures regarding the knees. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's knees. Therefore, Diagnostic Codes 5257, 5258 and 5259 are inapplicable. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In considering whether a higher rating is warranted based on loss of motion under another diagnostic code, the Board finds that Diagnostic Code 5256 does not apply, as there is no evidence of knee ankylosis of the right knee. Diagnostic Code 5055 contemplates prosthetic replacement of the knee joint. The evidence does not show that the Veteran has undergone a knee replacement, thus, Diagnostic Code 5055 is also inapplicable. 38 C.F.R. § 4.71a. For these reasons, a rating in excess of 10 percent for the Veteran's right and left knee disabilities with limitation of motion in flexion is denied. REASONS FOR REMAND 1. Entitlement to service connection for degenerative arthritis of the spine is remanded. 2. Entitlement to service connection for a right hip condition, to include as secondary to bilateral knee chondromalacia, is remanded. 3. Entitlement to service connection for a left hip condition, to include as secondary to bilateral knee chondromalacia, is remanded. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13/ Vet. App./ 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In the November 2020 remand, the Board directed the AOJ to obtain an opinion from an appropriate clinician regarding the Veteran's arthritis of the spine and bilateral hip disorders. The clinician was to provide an opinion that considered the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. The clinician was asked to note if the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or if the Veteran's reports were generally inconsistent with medical knowledge or implausible. In a December 2020 opinion, the VA examiner found that the Veteran's degenerative arthritis of the spine and bilateral hips were less likely than not incurred in or caused by the claimed arthritis during service. The examiner reasoned that there was no evidence of arthritis of the back noted in service. However, the examiner did not consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. Additionally, the examiner did not address if the Veteran's reports about his symptoms aligned with how the currently diagnosed disability was known to develop or if the Veteran's reports were generally inconsistent with medical knowledge or implausible. Accordingly, remand for an addendum opinion is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Entitlement to service connection for an acquired psychiatric disorder, other than unspecified depressive disorder, but to include PTSD, is remanded. In a November 2020 remand, the Board directed the RO to obtain a VA examination in which the examiner must consider both the DSM-IV and DSM-V in order to determine whether any psychiatric disorders other than unspecified depressive disorder, to include PTSD, are present throughout the appeal period. The examination obtained following the December 2020 remand was conducted using only the DSM-V criteria, rather than the requested DSM-IV and DSM-V criteria. Thus, a remand for an addendum opinion is required. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Additionally, the examiner was instructed to discuss the September 2015 VA treatment record, which included a positive screen for PTSD. The examiner opined that it was less likely than not that the Veteran had an acquired disorder that was incurred in or caused by the September 2015 VA treatment record, which included a positive screen for PTSD. However, the question was not whether or not the September 2015 positive PTSD screen caused the Veteran's current condition, rather the examiner should address whether or not the Veteran currently met the criteria for PTSD or any other psychiatric disorder, including during treatment in September 2015. On further review of the record, a January 2017 VA treatment record also included a positive screen for PTSD. Therefore, a new VA opinion is necessary. 5. Entitlement to service connection for sleep apnea, to include as secondary to PTSD, is remanded. In the November 2020 remand, the Board directed the AOJ to obtain an opinion from an appropriate clinician regarding the Veteran's sleep apnea. The examiner was asked to whether the Veteran's sleep apnea is at least as likely as not either (1) proximately due to any service-connected acquired psychiatric disability or (2) aggravated beyond its natural progression by any service-connected acquired psychiatric disability. In a December 2020 VA medical opinion, although the examiner opined that the sleep apnea was less likely than not proximately due to or the result of an unspecified depressive disorder, the examiner did not address the issue of aggravation. Accordingly, remand for an addendum opinion is warranted. Id. 6. Entitlement to an evaluation in excess of 10 percent for PFB is remanded. In the November 2020 remand, the Board directed the AOJ to obtain an opinion from an appropriate clinician regarding the Veteran's sleep apnea. The examiner was specifically asked to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups of PFB. If it was not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The December 2020 VA examiner did not elicit this information. Therefore, a remand for an addendum opinion is necessary. Id. Although the Veteran described his PFB as non-progressive because he doesn't shave as often, the examiner should still elicit information regarding the Veteran's severity, frequency, and duration of symptomatology when he does shave versus when he does not shave his face. The matters are REMANDED for the following action: 1. Regarding the Veteran's arthritis of the spine, return the claims file to the December 2020 VA examiner, or if that examiner is not available, another examiner of appropriate knowledge and expertise. It is up to the discretion of the examiner if a new examination is necessary, or in the alternative, an addendum opinion will suffice. The claims file and a copy of this remand must be provided to the examiner. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's arthritis of the spine (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Regarding the Veteran's bilateral hip disabilities, return the claims file to the December 2020 VA examiner, or if that examiner is not available, another examiner of appropriate knowledge and expertise. It is up to the discretion of the examiner if a new examination is necessary, or in the alternative, an addendum opinion will suffice. The claims file and a copy of this remand must be provided to the examiner. The examiner must address the following: Is it at least as likely as not that the Veteran's arthritis of the left hip (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Is it at least as likely as not that the Veteran's arthritis of the right hip (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. In providing the requested opinions, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. Regarding the Veterans acquired psychiatric disorder, other than unspecified depressive disorder, to include PTSD, return the claims file to the December 2020 VA examiner, or if that examiner is not available, another examiner of appropriate knowledge and expertise. It is up to the discretion of the examiner if a new examination is necessary, or in the alternative, an addendum opinion will suffice. The examiner should specifically consider whether any other psychiatric disorder other than unspecified depressive disorder was present at any time throughout the appeal period. In addressing whether any psychiatric disorders other than unspecified depressive disorder, to include PTSD, are present throughout the appeal period, the examiner must consider both the DSM-IV and DSM-V. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner's opinion must discuss the September 2015 and January 2017 VA treatment records which included positive screens for PTSD. If any other psychiatric disorders other than unspecified depressive disorder are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the death of the Veteran's infant daughter. Provide a rationale to support the opinions. 4. Regarding the Veterans sleep apnea, return the claims file to the December 2020 VA examiner, or if that examiner is not available, another examiner of appropriate knowledge and expertise. It is up to the discretion of the examiner if a new examination is necessary, or in the alternative, an addendum opinion will suffice. The examiner is asked to provide a response to the following: is it at least as likely as not either (1) proximately due to any service-connected acquired psychiatric disability or (2) aggravated beyond its natural progression by any service-connected acquired psychiatric disability. The Veteran is currently service connected for unspecified depressive disorder. The examiner should address whether or not his or her opinions would change if the Veteran was service connected for an acquired psychiatric disorder, other than unspecified depressive disorder, but to include PTSD. Provide a rationale to support the opinions. 5. Regarding the Veteran's PFB, return the claims file to the December 2020 VA examiner, or if that examiner is not available, another examiner of appropriate knowledge and expertise. It is up to the discretion of the examiner if a new examination is necessary, or in the alternative, an addendum opinion will suffice. The claims file and a copy of this remand must be provided to the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also elicit information regarding the Veteran's severity, frequency, and duration of symptomatology when the Veteran does shave versus when he does not shave his face. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L.Crohe, 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.