Citation Nr: 21030561 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-42 034 DATE: May 19, 2021 ORDER A rating in excess of 10 percent for left knee patellofemoral pain syndrome is denied. REMANDED Service connection for posttraumatic stress disorder (PTSD). Service connection for an acquired psychiatric disorder, other than PTSD. FINDINGS OF FACT 1. The Veteran served on active duty from July 1980 to July 1984. 2. A left knee disability has been manifested by subjective complaints of pain; objective findings included flexion, at worst, to 110 degrees, extension, at worst, to 0 degrees, no locking of the knee joint or semilunar cartilage condition, no surgery, and no medial tibial stress syndrome (MTSS). CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1131, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Codes (DCs) 5003-5260 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In August 2018, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In April 2020, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. 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. The Veteran's left knee disability has been rated as 10 percent disabling under DC 5260 for the entire period on appeal; however, all relevant diagnostic codes will be considered. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the amended version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the pre-amended regulation is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021 and both the pre-amended and amended rating criteria since February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, 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; or malunion of the tibia or fibula with moderate knee or ankle disability. As of February 7, 2021, under the amended 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; or 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. Turning to the medical evidence, at a November 2010 VA examination, the Veteran reported that he continued to have off and on pain in service and was seen for treatment several times. He also noticed a small tender knot in the left lateral knee near the fibular head. He reported that he did not get any further care following his discharge until the late 1990s and again in 2008. He had not been treated since. The Veteran complained of pain rated as a 2/10 in intensity and occasionally increasing to 7/10 in intensity located in the peripatellar region. He also complained of painful clicking and popping. He denied swelling, but noticed occasional redness and warmth to the left knee, and a tender mobile mass over the lateral knee. He denied surgery or locking, but complained of giving way which caused him to stumble, but not fall. Range of motion testing revealed measurements from 0 to 140 degrees, with complaints of pain at 140 degrees. Audible popping was noted with relief of pain at 140 degrees. The examiner noted no additional functional loss due to pain, fatigue, weakness, lack of endurance, or incoordination on repetitive use testing. Crepitus was noted, but without heat or redness, and the knee was noted to be stable. Imaging revealed no evidence of arthritis, or notable change. Adjacent bones and soft tissue were noted to be normal. In February 2013, the Veteran reported to VA complaining of pain below the knee to his ankle after using a leg press. He was noted to be walking with a limp. In July 2013, he was fitted for a left knee brace. While he reported pain, range of motion was normal. January 2014 VA treatment notes reported pain of 3/10 in intensity. November 2014 VA treatment notes revealed that the Veteran used a left knee brace at night, and reported pain standing for too long. July 2017 VA treatment notes showed bilateral knee flexion which was limited. It also showed that the Veteran was being re-fitted for another knee brace. This finding of limited bilateral knee flexion was noted again in February 2018; however, no exact measurements were given either time. At a January 2021 VA examination, the Veteran described symptoms of stabbing pain radiating to his ankle with popping. He stated that he took Ibuprofen and wore a knee brace to treat it, but that he was unable to stand for long periods or lift heavy items. He denied any flare-ups. The Veteran denied instability or recurrent subluxation, as well as any history of effusion. Range of motion testing showed flexion to 120 degrees, and extension to zero degrees. Pain was noted on examination in flexion and extension, but did not contribute to functional loss. There was no additional loss of range of motion on passive movement, but pain was noted on active motion. There was no objective evidence of localized tenderness or pain on palpation. Repetitive use testing revealed additional pain, with flexion limited to 110 degrees, without change in extension. The examiner noted that during a flare-up, flexion was likely to remain limited to 110 degrees with extension to zero degrees, and pain and disturbance of locomotion contributing to functional loss. Parenthetically, anatomically normal flexion of the knee is to 140 degrees and extension to 0 degrees. There was no muscle atrophy, ankylosis, instability, ligament tears, and no prescription by any doctor for a brace, walker, cane, or crutch. There was no patellar instability, no tibial or fibular impairment, no meniscal conditions, and no surgeries performed on the left knee. The examiner noted that the Veteran was limited in running, kneeling, crawling, prolonged sitting or standing, and high impact activities. Clinical records were also reviewed. While sporadic complaints of knee pain were noted, there was no indication of any worsening symptoms which would support a higher rating. Based on the above, the medical evidence weighs against a higher rating. In this regard, the medical evidence shows flexion to be, at worst, 110 degrees, extension to be, at worst, 0 degrees, and no evidence of tibial or fibular impairment, MTSS, and/or shin splints. Further, while the Veteran has been diagnosed with a condition involving the patellofemoral complex and has reported using a knee brace, there is no evidence of a left knee sprain, ligament tear, or knee surgery. In addition, there is no evidence of perceived or reported left knee instability, and the medical evidence is absent of objective findings of recurrent subluxation or lateral instability. Therefore, the medical evidence does not support a higher rating. 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 directly address the criteria under which a left knee disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by a left knee disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. REASONS FOR REMAND The Veteran has repeatedly and consistently asserted that he experienced military sexual trauma (MST). In a July 2020 VA examination, he was diagnosed with unspecified mood disorder and unspecified alcohol-related disorder. The examiner specifically found that PTSD was not shown. The examiner opined that the diagnoses were less likely than not related to active duty, to include the reports of MST. She reasoned that the Veteran had been found to exaggerate stories and his reports of MST were inconsistent. On the other hand, clinical records reflect multiple instances of a diagnosis of PTSD rendered by other VA treatment providers. The record also showed diagnoses of major depressive disorder (MDD) and mood disorders. A May 2020 Personal Trauma Incident/Marker Worksheet (from an unknown source), identified markers in the record that suggested that an MST occurred, including several Article 15s for inappropriate behavior, drug use counseling, and pain in the groin. As this evidence was not specifically considered by the examination, an addendum opinion is needed to address this evidence. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent, VA and private treatment records and associate them with the claims file. 2. The RO should prepare a Memorandum for the file which identifies any potential MST markers identified in the service treatment records. For clarification purposes, the RO is asked to address whether the Personal Trauma Incident/Marker Worksheet added to the file in May 2020 was generated by VA. If so, this document is sufficient to identify potential markers. 3. Direct the claims file to a clinician to address the etiology of the Veteran's psychiatric disorders. The clinician is asked to address the following: Identify all mental health diagnoses If the clinician finds that the Veteran does not meet the criteria for a DSM-V diagnosis of PTSD, he or she is asked to address the several notations of such a diagnosis seen in the Veteran's treatment records and provide a rationale as to why he does not meet the criteria for a PTSD diagnosis. For any diagnosis rendered, the examiner is asked to address the following whether it is at least as likely as not (50 percent probability or greater) that the diagnosis is related to any incident of the Veteran's active duty, to include MST. The clinician is asked to address various markers identified in the service records, including Article 15s, drug use, and medical treatment for pain in the groin, and any others identified by the RO in rendering an opinion. Thorough rationales are required for any opinions rendered. 4. 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 M. Yacoub, 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.