Citation Nr: 21040186
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 03-17 807
DATE: July 2, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for chondromalacia of the right knee, post-operative with limitation of flexion (hereinafter "right knee flexion") is denied.

Entitlement to an initial rating in excess of 10 percent for right knee instability is denied.

Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome (PFS) (previously called chondromalacia of the left knee) is denied.

Entitlement to an initial rating o percent, for df 70 percent for depression not otherwise specified is granted. 

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's right knee chondromalacia manifested as flexion limited to, at worst 80 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, malunion or nonunion of the tibia and fibula or genu recurvatum.

2. Throughout the period on appeal, the Veteran's right knee instability manifested at worst, slight, and has not been shown to have a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; and a medical provider has not prescribed a brace and/or assistive device; nor does she have an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider has not prescribed either an assistive device or bracing for ambulation.  

3. Throughout the period on appeal, the Veteran's left knee PFS manifested as flexion limited to, at worst 90 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, malunion or nonunion of the tibia and fibula or genu recurvatum.

4. Throughout the period on appeal, the Veteran's depression manifested in approximate occupational and social impairment with deficiencies in most areas, such as school, work, family relations, judgment, thinking, and/or mood. 

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 10 percent for right knee flexion have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.71a, Diagnostic Code 5260.

2. The criteria for an initial rating in excess of 10 percent for right knee instability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.71a, Diagnostic Code 5257.

3. The criteria for an initial rating in excess of 10 percent for left knee PFS have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.71a, Diagnostic Code 5260.

4. The criteria for an initial rating 70 percent rating for depression not otherwise specified have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.125, 4.126, 4.130, Diagnostic Code 9434.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1979 to October 1980.  

These matters come to the Board of Veterans' Appeals (Board) on appeal from November 2003, June 2010, and April 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) Montgomery, Alabama.  

As noted in the prior Board remand, service connection for right knee chondromalacia was granted in November 2003 and assigned a 10 percent disability rating under the diagnostic code for limitation of flexion.  The Veteran appealed the amount of the assigned disability rating.  During the pendency of the appeal, in a March 2005 rating decision, the agency of original jurisdiction (AOJ) granted a separate 10 percent disability rating for service connection for right knee arthritis with instability, effective in July 2004, under a combined disability code 5257-5010.  The Veteran appealed the assigned rating as well as the effective date.  In January 2008, the Board granted the earlier effective date of May 20, 2002 for the right knee instability.  As such, the Veteran has two separate ratings for the right knee from May 20, 2002.  

Also, in January 2008, the Board granted service connection for left knee chondromalacia patella and remanded the issue of entitlement to an initial disability rating in excess of 10 percent for chondromalacia of the right knee. 

In December 2013, the Board remanded the issues of entitlement to higher initial ratings for the left and right knee disabilities, for further development.  The appeal was once again remanded by the Board in April 2017.  

With respect to the claim for a higher initial rating for depressive disorder, during the pendency of the appeal, in a September 2013 rating decision, the AOJ increased the initial rating from 10 percent to 50 percent.  Additionally, in April 2017, the Board granted an earlier effective date for service connection of the depressive disorder to December 27, 2004 and remanded the issue of the increased rating for further adjudication by the AOJ.  On remand, the AOJ implemented the earlier effective date and assigned the 50 percent disability rating effective December 27, 2004, the date of service connection. 

Although an increased rating was granted during the pendency of the appeal, inasmuch as higher ratings for the disability are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Moreover, the Board notes that in an April 2021 rating decision, the AOJ granted service connection for left knee semi lunar cartilage disorder, right knee semi lunar cartilage disorder, and left knee instability, and assigned initial disability ratings and effective dates.  To date, the Veteran has not disagreed with the assigned ratings or effective dates, and those matters are not before the Board. 

Similarly, the Board notes that service connection is currently in effect for right and left knee surgical scars, effective July 20, 2017.  To date, the Veteran has not disagreed with the assigned ratings or effective dates, and those matters are not before the Board.

This case was most recently before the Board in December 2017, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development.  The case has now been returned to the Board for appellate action.

Increased Rating

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.  It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms.  See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

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 disability.  38 C.F.R. § 4.14.  It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Id. 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Id., quoting 38 C.F.R. § 4.40.  

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).  In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  Correia v. McDonald, 28 Vet. App. 158 (2016).  Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements.  Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). 

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims.

The assignment of a particular diagnostic code is dependent on the facts of a particular case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

Additionally, the Board has considered here whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  The record shows that the Veteran was granted entitlement to a TDIU effective December 1, 2007.  For the time period prior to December 1, 2007, the record reflects the Veteran was employed full time as a nurse; and did not allege that she was unable to obtain and maintain employment due ot her service-connected disabilities prior to December 1, 2007.  The issue of a TDIU does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (finding that where there was no evidence indicating unemployability, and with the record suggesting the opposite, i.e. that the Veteran was employed, a TDIU claim was not raised.).  As such, a Rice claim is not raised.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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. Right and Left Knees

The Veteran seeks higher ratings for her service-connected right knee chondromalacia with impaired flexion and instability, as well as left knee PFS.  Specific argument in support of this appeal has not been provided.  Rather, the Veteran generally asserts her symptoms are worse than contemplated by the current ratings assigned. 

The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised.  See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4).  In the present case, the Veteran's claims for increased rating stem from a claim filed in May 2002; there is one VA examination report for the knees dated after February 7, 2021.  Diagnostic Codes 5260 and 5261 are unchanged under the revised criteria.  

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 revised 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 former version 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.  

While Diagnostic Code 5262 for impairment of the tibia and fibula was revised, the February 2021 musculoskeletal criteria do not apply to the Veteran's claims on appeal and the appropriate criteria are discussed below. 

With regard to Diagnostic Code 5257 for recurrent subluxation and lateral instability, the Board will consider the Veteran's claims under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021.  The criteria that is more favorable to the Veteran will be applied.

The normal range of motion of the knee is from zero degrees extension to 140 degrees flexion.  38 C.F.R. § 4.71, Plate II.  Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5261.  A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims).

Limitation of motion of the knee is rated under diagnostic codes 5260 and 5261. Under Diagnostic Code 5260, a minimum 10 percent rating is warranted for flexion limited to 45 degrees, while a 20 percent rating is warranted for flexion limited to 30 degrees.  Under Diagnostic Code 5261, a minimum 10 percent rating is warranted for extension limited to 10 degrees, while a 20 percent rating is assigned for extension limited to 15 degrees.  Normal range of motion for the knee is from 140 degrees flexion to zero degrees extension.  38 C.F.R. § 4.71, Plate II.

Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259).  See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). 

Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms.  38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259.  

Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee.  38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263.  Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).  Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003).  In this case the evidence does not reflect, and the Veteran does not allege, that she has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee.  As such, those diagnostic codes are not for application. 

Under the old criteria, in effect prior to February 7, 2021, recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively.  38 C.F.R. § 4.71a Diagnostic Code 5257.  

Under the revised criteria, in effect February 7, 2021, for recurrent subluxation or instability, a 10 percent rating is warranted for 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.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (February 7, 2021).  A 20 percent rating is warranted for one of the following: (a) 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 (b) 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.  Id.  A maximum 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 (e.g., cane(s), crutch(es), walker) and bracing for ambulation.  Id. 

Additionally, under the revised criteria, in effect February 7, 2021, for patellar instability, a 10 percent rating is warranted 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.  Id.  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.  Id.  A maximum 30 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 a brace and either a cane or a walker.  Id.  

Note (1) states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.  Id.  Note (2) states that 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).  Id. 

Turning to the evidence, in her May 2002 claim, the Veteran reported pain on movement, limited motion, stiffness, popping, and treating discomfort with over the counter medication and strengthening exercises.  See VA Form 21-4138 Statement in Support of Claim, May 15, 2002. 

Of record is a May 2004 private treatment record by Dr. R.F.  At that time, Dr. R.F. indicated the Veteran had limping, pain, crepitus, and grinding of the patellofemoral joint of the right side.  Dr. R.F. noted the Veteran did not have instability to varus, valgus, or anterior-posterior stress testing; pivot shift test was negative; McMurray's maneuver was negative.

In a June 2004 VA Form 21-4138 Statement in Support of Claim, the Veteran reported lateral instability and osteoarthritis of the right knee.  See VA Form 21-4138 Statement in Support of Claim, June 30, 2004. 

At a December 2004 VA examination, the Veteran reported she had left knee pain and swelling after working and being on her feet.  She reported continued pain and swelling of the right knee that was worsened with prolonged or repetitive use.  Upon physical examination of her right knee, the Veteran was shown to have an elastic knee wrap but used no assistive device; patella grind was slightly positive on the right; McMurray was negative; Drawer sign was negative; joint margins were tender; there was no detectable fluid; and range of motion measurements of the right knee were from 0 to 140 degrees.  Upon physical examination of the left knee, the Veteran was shown to have grind sign was negative; no swelling or tenderness; McMurray and drawer sign were both negative; and her range of motion measurements of the left knee were from 0 to 140 degrees.  Both knees were stable to varus and valgus stress; there was no pain on motion. 

The December 2004 examiner noted the Veteran had mild loss of function due to pain in her right knee, and minimal loss of function due to pain on her left knee with an additional 15 percent loss of function with repetitive use. 

Of record is a March 2005 VA treatment record that indicates the Veteran reported longstanding history of bilateral knee pain, with pain worse in the right knee.  She reported a pop in her right knee four weeks prior, and had swelling and pain since that time.  She did not have locking or catching sensations, and pain after working for 10 hours as a nurse.  Upon physical examination, range of motion measurements of the right knee was from 0 to 110 degrees.  The Veteran had some lateral joint line tenderness, some lateral patellofemoral joint tenderness, and some medial joint line tenderness.  She had some patella crepitus on range of motion.  She had mildly positive McMurray's test and negative Lachman's test.  

Of record is a July 2008 lay statement submitted by the Veteran.  At that time, the Veteran reported she quit her job due to severe pain and swelling in her bilateral knees.  See Correspondence, July 1, 2008. 

Of record is a lay statement submitted by the Veteran's daughter, A.B.  At that time, A.B. reported that the Veteran's left knee bothered her mother, had a lot of swelling, and sometimes to the point the Veteran could not lift her leg to put on pants or underwear.  See Correspondence, April 28, 2009.  A.B. reported that she had to help the Veteran get dressed on occasion, and helped with housework.  Id.

Of record is an April 2009 lay statement submitted by the Veteran.  At that time, the Veteran reported she had pain in her right knee that made her "favor" her left knee, and caused severe pain and swelling in her left knee.  She reported she could not climb a flight of stairs, squat, walk for exercise, and had difficulty getting in and out of a chair.  See VA Form 21-4138 Statement in Support of Claim, April 21, 2009.  The Veteran reported she required help from her daughter for a lot of household chores, and anything that required the use of a step ladder.  Id.  

At a June 2009 VA examination, the Veteran the Veteran reported right knee pain, and swelling when using her right knee for any length of time.  She stated the pain in her right knee was severe and chronic, and she could not ascend or descend stairs.  Treatments included medication and bracing.  Right knee symptoms included pain; stiffness; decreased speed of joint motion; and affected motion of the joint.  

Upon physical examination of the right knee at the June 2009 VA examination, the Veteran had tenderness.  Range of motion measurements of the right knee were as follows: extension was to 0 degrees; and flexion was to 107 degrees.  Range of motion measurements of the left knee were as follows: extension was to 0 degrees; and flexion was to 114 degrees.  There was objective evidence of pain with active motion on both sides.  There was objective evidence of pain following repetitive motion bilaterally.  There was no additional limitations after three repetitions of range of motion.  There was no joint ankylosis.  

The June 2009 VA examiner noted the Veteran's right knee pain affected her usual daily activities as follows: moderate effect on chores, shopping, and exercises; severe effect on sports; and mild effects on recreation, traveling, bathing, dressing, toileting, and driving.  The detailed motor examination at the June 2009 VA examination showed normal strength in the bilateral knee extension.  Muscle tone was normal; there was no muscle atrophy. 

In a July 2012 lay statement, the Veteran asserted she disagreed with the range of motion measurements because the examiner did not ask her to perform every day task such as, climbing stairs or squatting.  See VA Form 21-4138 Statement in Support of Claim, July 26, 2012.  She stated that, had the examiner asked her to perform every day activities, he would have found that she cannot squat or climb stairs, and that these activities were difficult even with the help of a handrail.  Id.  The Veteran also stated that the VA examiners cannot observe the Veteran in her daily life, and does not see the pain and swelling she experiences on a daily basis. Id.  The Veteran reported standing prolonged periods caused significant pain, and she required the help of her daughter for house chores.  The Veteran stated she could no longer work.  Id. 

At a March 2015 VA examination, the Veteran reported flare-ups bilaterally, occurring two to three times a week, with pain that intensified to 9 out of 10 pain intensity in both knees; there was no additional limitations during flare-ups.  The Veteran reported functional loss as difficulty with stair climbing and walking on uneven surfaces.

Range of motion measurements of the left knee in March 2015 were as follows: extension was to 0 degrees; and flexion was to 100 degrees.  Range of motion measurements of the right knee in March 2015 were as follows: extension was to 0 degrees; and flexion was to 80 degrees.  Range of motion itself did not contribute to a functional loss bilaterally.  Pain was noted on rest, flexion, and extension bilaterally.  There was no evidence of pain with weight-bearing bilaterally.  There was localized tenderness or pain on palpation of the joint in the patellar area bilaterally.  

The Veteran was able to perform repetitive-use testing with at least three repetitions; there was no additional functional loss or range of motion after three repetitions bilaterally.  The Veteran was examined immediately after repetitive-use over time; the examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time because an opinion regarding functional limitations during flare-ups of this condition is not feasible since this relies on subjective data; therefore, the examiner would be resorting to mere speculation in rendering such opinion.  The examination was conducted during a flare-up; the examiner was unable to say without mere speculation without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability during a flare-up because an opinion regarding functional limitations during flare-ups of this condition is not feasible since this relies on subjective data; therefore, the examiner would be resorting to mere speculation in rendering such opinion.  

At the March 2015 VA examination, additional factors contributing to disability included less movement than normal due to ankylosis and adhesions.  Muscle strength testing of the right knee showed active movement against some resistance in flexion and extension; there was a reduction of muscle strength.  Muscle strength testing of the left knee showed normal strength in flexion and extension; there was not a reduction in muscle strength.  There was no muscle atrophy bilaterally.  The examiner noted mild swelling bilaterally, with swelling greater on the right.  There was no ankylosis bilaterally.  Joint stability testing was normal bilaterally.  There was a history of reported swelling in the knees bilaterally.  The Veteran did not have, or ever had, recurrent patellar dislocation, "shin splints," (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment bilaterally.  The Veteran did not have or ever had a meniscus (semilunar cartilage) condition.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown.  The Veteran denied the use of any assistive device as a normal mode of locomotion.  Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis.  Diagnostic imaging studies documented arthritis bilaterally.  The examiner noted the Veteran's knees impacted her ability to work due to no climbing, and no prolonged walking of standing. 

At an August 2015 VA examination, the Veteran reported her right knee symptoms were worse than her left knee, and she had symptoms daily.  She reported she wore a knee brace but found that it irritated her skin.  The Veteran endorsed flare-ups of the bilateral knees, occurring two to three times per week.  The Veteran reported functional loss or functional impairment as stair use, and walking over 100 yards or on uneven ground.  

Range of motion measurements of the left knee in August 2015 were as follows: extension was to 0 degrees; and flexion was to 94 degrees.  Range of motion measurements of the right knee in August 2015 were as follows: extension was to 0 degrees; and flexion was to 92 degrees.  Range of motion itself did not contribute to a functional loss bilaterally.  Pain was noted on examination but did not result in or cause a functional loss bilaterally.  There was no evidence of pain with weight-bearing bilaterally.  There was objective evidence of crepitus bilaterally.  

The Veteran was able to perform repetitive-use testing with at least three repetitions; there was no additional functional loss or range of motion after three repetitions bilaterally.  The Veteran was not examined immediately after repetitive-use over time; the examination was neither medically consistent or inconsistent with the Veteran's statements describing a functional loss with repetitive-use over a period of time bilaterally.  The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time because an opinion regarding functional limitations during flare-ups were not feasible as this relied on subjective data; therefore, the examiner would be resorting to mere speculation in rendering such opinions.  The examination was not conducted during a flare-up; the examiner was unable to say without mere speculation without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability during a flare-up because an opinion regarding functional limitations during flare-ups of this condition is not feasible since this relies on subjective data; therefore, the examiner would be resorting to mere speculation in rendering such opinions.

At the August 2015 VA examination, there were no additional factors contributing to the disability found.  Muscle strength testing was normal bilaterally; there was no reduction of muscle strength nor atrophy bilaterally.  There was no ankylosis bilaterally.  There was no history of recurrent subluxation, lateral instability, nor recurrent effusion.  There was no joint instability found bilaterally.  The Veteran did not have, or ever had, recurrent patellar dislocation, "shin splints," (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment bilaterally.  The Veteran did not have or ever had a meniscus (semilunar cartilage) condition.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown.  The Veteran denied the use of any assistive device as a normal mode of locomotion.  Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis.  Diagnostic imaging studies documented arthritis bilaterally.  The examiner noted the Veteran's knees impacted her ability to work due to limited prolonged standing, walking, squatting, or stair use.

At a July 2017 VA examination, the Veteran reported she had constant pain in both knees, rated as 8 to 10 out of 10 pain intensity.  She denied flare-ups of the bilateral knees.  The Veteran reported functional loss or functional impairment as inability to use stairs; cannot do any sitting, standing, or walking for prolonged periods of time; cannot do any heavy lifting, pushing, or pulling; cannot do repetitive bending; cannot squat or kneel; and cannot drive for longer than two hours without stopping for rest. 

Range of motion measurements in July 2017 were as follows: extension was to 0 degrees bilaterally; and flexion was to 90 degrees bilaterally.  Range of motion itself contributed to a functional loss due to the decreased range of motion contributing to an inability to do things.  Pain was noted on examination in flexion and extension bilaterally.  There was evidence of pain with weight-bearing bilaterally.  There was objective evidence of localized tenderness or pain at the diffuse joint line bilaterally.  There was objective evidence of crepitus bilaterally.  

The Veteran was unable to perform repetitive-use testing with at least three repetitions due to pain.  The Veteran was not examined immediately after repetitive-use over time; the examination was neither medically consistent or inconsistent with the Veteran's statements describing a functional loss with repetitive-use over a period of time bilaterally.  The examiner found pain, weakness, fatigability or incoordination significantly limited functional ability with repetitive-use over a period of time.  The examiner could not describe in terms of range of motion without resorting to mere speculation as Veteran was not examined under those conditions. 

At the July 2017 VA examination, additional factors contributing to the disability included less movement than normal due to ankylosis, adhesions, etc.; weakened movement due to muscle or peripheral nerve injury; swelling; instability of station; disturbance of locomotion; interference with sitting; interference with standing; and pain.  Muscle strength testing showed active movement against some resistance in flexion and extension bilaterally; there was a reduction in muscle strength.  The Veteran did not have muscle atrophy.  There was no ankylosis bilaterally.  There was no history of recurrent subluxation bilaterally nor recurrent effusion bilaterally.  There was no history of lateral instability of the right knee, and severe lateral instability of the left knee.  Joint stability testing was normal bilaterally.  The Veteran did not have, or ever had, recurrent patellar dislocation, "shin splints," (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment bilaterally.  The Veteran did not have or ever had a meniscus (semilunar cartilage) condition.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown.  The Veteran endorsed the constant use of a brace and cane as a normal mode of locomotion.  Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Diagnostic imaging studies documented arthritis bilaterally.  The examiner noted the Veteran's knees impacted her ability to work due to inability to go up or down stairs; cannot do any sitting, standing, or walking for prolonged periods of time; cannot do any heavy lifting, pushing, or pulling; cannot do repetitive bending; cannot squat or knee; and cannot drive for longer than 2 hours without stopping for rest. 

Additional remarks at the July 2017 showed that there was no contralateral joint that was uninjured or normal; there was pain with nonweight-bearing at rest that caused a functional loss as noted above; pain with passive range of motion that caused a functional loss as noted above; and pain with weight-bearing that caused a functional loss as noted above. 

At an April 2021 VA examination, the Veteran reported worsening symptomatology in the intensity of pain as well as stiffness and edema to the bilateral knees.  The Veteran reported she was suggested bilateral knee replacements, but was trying to hold off as long as she can.  The course since onset was a gradual worsening since her last VA examination.  Her current knee symptoms included pain the bilateral knees, described as deep, achy, stabbing pain; and edema and stiffness that was worse in the right knee.  She took medication, and used ice and heat to treat the knees; the Veteran endorsed the occasional use of knee braces.  The Veteran denied flare-ups of the bilateral knees.  The Veteran reported functional loss or functional impairment as unable to go up and down stairs; difficulty with prolonged walking, standing, and sitting; unable to ride or drive more than an hour without stopping; and unable to squat, crouch, and kneel.  She reported that she had a history of instability or recurrent subluxation of the knee, and stated that sometimes her knees would "just buckle under" her.  The Veteran endorsed a history of frequent effusion of the bilateral knees, and stated that they stayed swollen. 

Range of motion measurements in April 2021 were as follows: extension was to 0 degrees bilaterally; and flexion was to 90 degrees bilaterally.  Range of motion itself contributed to a functional loss due to the functional loss or functional impairment reported above.  Pain was noted on examination in flexion and extension bilaterally.  Passive range of motion was the same as active range of motion, and had pain on flexion and extension bilaterally.  There was evidence of pain on weight-bearing, active motion, passive motion, on rest/non-movement, and caused a functional loss bilaterally.  There was objective evidence of crepitus bilaterally.  There was moderate pain noted to the knee with light palpation bilaterally. 

The Veteran was able to perform repetitive-use testing with at least three repetitions; there was no additional loss of function or range of motion after three repetitions.  The Veteran was not examined immediately after repetitive-use over a period of time.  Pain and weakness were shown to significantly limit functional ability with repetitive-use over a period of time bilaterally.  Estimated range of motion in degrees of the bilateral knees immediately after repetitive-use over time based on information procured from relevant sources showed flexion to 85 degrees, and extension to 0 degrees each.  The Veteran reported decreased functional limitations related to pain and weakness with repetitive-use over a period of time.  The Veteran was not examined during a flare-up.  The evidence procured did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with flare-ups; the examiner noted the Veteran denied flare-ups of the bilateral knees.  

There were no additional factors contributing to the disability bilaterally at the April 2021 VA examination.  The Veteran did not have muscle atrophy bilaterally.  There was no ankylosis of either knee.  The Veteran was shown to have recurrent subluxation or persistent instability bilaterally.  There had not been a ligament tear (sprain).  The Veteran did not require a prescription by a medical provider for a cane, walker, crutch, or brace.  There was no recurrent patellar instability of either knee.  The Veteran did not have or had been diagnosed with a recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, or any other tibial or fibular impairment.  The Veteran currently had or been diagnosed with a meniscal tear, frequent episodes of joint pain, and frequent episodes of joint effusion following the meniscal tear.  The Veteran underwent meniscectomy of the bilateral knees (right knee in 1980 and 1983; left knee in 2010); and residual signs of symptoms due to meniscectomy included frequent episodes of joint pain and joint effusion.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown.  The Veteran endorsed the regular use of a brace and cane as a normal mode of locomotion.  Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis.  The examiner noted the Veteran's knees impacted her ability to work due to bilateral knee instability; bilateral meniscal tears status post (SP) repair with residuals; degenerative arthritis of the bilateral knees; PFS bilaterally; inability to go up and down stairs; difficulty with prolonged walking, standing, and sitting; unable to drive or ride for more than an hour without stopping; and unable to squat, crouch, or kneel.  The examiner noted the Veteran was a retired nurse, and lost 0 to 1 week of work time in the last 12 months. 

Additional remarks at the April 2021 VA examination showed the examiner was unable to clarify the July 2017 VA examination report with respect to findings of her left knee instability, and was unable to offer a retrospective opinion regarding each of these findings, if possible, dating to May 2002 for the right knee without resorting to mere speculation. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities, to include her right and left knees.  However, there is no indication from the treatment notes of record that the Veteran has reported knee symptoms or range of motion measurements that are worse than those noted above. 

Based on the foregoing, the Board finds an initial rating in excess of 10 percent is not warranted for right or left knee based on limitation of motion.  For the Veteran's right knee, his flexion was limited to 80 degrees, at worst, at the March 2015 VA examination.  For the Veteran's left knee, his flexion was limited to, 90 degrees, at worst at the July 2017 VA examination.  Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to an initial rating in excess of 10 percent under Diagnostic Code 5260.  Specifically, as demonstrated during the VA examinations of record, the Veteran had pain on motion but there is no indication that such resulted in additional functional loss, to include a greater loss of flexion or extension.  The Board finds that they do not more nearly approximate flexion that is limited to 30 degrees.  See DeLuca, supra; Mitchell, supra.  Therefore, the Veteran is not entitled to an initial rating in excess of 10 percent in either knee under Diagnostic Code 5260.

Pursuant to VAOPGCPREC 9-04, the Board has also considered whether the Veteran is entitled to higher or separate ratings under Diagnostic Code 5261 pertinent to limitation of extension of the knees.  As indicated previously, a 20 percent rating requires a finding of extension limited to 15 degrees.  The Veteran's range of motion testing revealed normal extension to zero degrees consistently throughout the appeal, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups.  See DeLuca, supra; Mitchell, supra.  Therefore, a separate rating based on limitation of extension for either knee is not warranted.

In this regard, the Board notes that, while the Veteran reported having flare-ups during his March 2015 and August 2015 VA examinations, the examiner did not estimate the degree of any additional loss in range of motion during flare-ups, and found that the pain, weakness, fatigability or incoordination did not significantly limit functional ability during flare-ups.  Additionally, during the March 2015, August 2015, July 2017, and April 2021 VA examinations, physical activity, such as repetitive use testing, revealed no additional loss of function.  Therefore, the Board finds no prejudice to the Veteran in this regard, as the findings noted in the VA examination reports likely represent the functional loss experienced by the Veteran during flare-ups, i.e., after physical activity.  Therefore, an initial rating higher than 10 percent is not warranted based upon limitation of motion under Diagnostic Code 5260 and 5261.

With regards to instability or subluxation, the Board finds that an initial rating in excess of 10 percent is not warranted for the right knee.  In this regard, the Veteran has been shown to have, at worst, slight right knee instability.  Specifically, the Veteran did not have instability of the right knee on examination in a December 2004 private treatment record, August 2015 VA examination, July 2017 VA examination, and April 2021 VA examination.  Although the Veteran reported instability, and the April 2021 VA examination report indicates the Veteran had recurrent subluxation or persistent instability of the bilateral knees, the April 2021 found there was no recurrent patellar instability of either knee.  However, the April 2021 VA examiner remarked that the Veteran's bilateral knee instability impacted her ability to work.  Most consistently, physical objective examination of the Veteran did not reveal subluxation nor history of instability of the right knee.  Therefore, resolving all doubt in favor of the Veteran, the Board finds the Veteran's right knee instability was, at worst, slight. 

Under the old criteria, the Veteran's right knee instability does not warrant an initial rating higher than 10 percent, as her instability was slight.  Additionally, under the new criteria, the Veteran's right knee instability does not warrant an initial rating higher than 10 percent.  The Veteran has not been shown to have a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; and a medical provider has not prescribed a brace and/or assistive device; nor does she have an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider has not prescribed either an assistive device or bracing for ambulation.  Notably, at her April 2021 VA examination, the Veteran reported residual signs of symptoms due to meniscectomy included frequent episodes of joint pain and joint effusion.  Moreover, although the Veteran reported the use of a brace and cane as assistive devices as anormal mode of locomotion, such assistive devices were not prescribed by a medical provider, nor did she require bracing.  Therefore, a higher rating for recurrent subluxation or lateral instability in the right knee under both the old and new Diagnostic Code 5257 is not warranted.

The Board also notes that the preponderance of the evidence does not reflect that the Veteran's right and left knees were manifested by ankylosis, recurrent subluxation, malunion and nonunion of the tibia or fibula, or genu recurvatum.  Therefore, Diagnostic Code 5256, 5259, 5262, and 5263 are not for application in this case.

Moreover, as the Veteran has retained motion in his knees throughout the period on appeal, by definition he does not have ankylosis.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable).

As noted above, the Veteran's bilateral semilunar cartilage disorder, left knee instability, or bilateral surgical scars are not currently before the Board and will not be discussed further.

Here, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp.  See Correia v. McDonald, supra, and Sharp v. Shulkin, supra.  In this case, the December 2004, June 2009, March 2015, August 2015, and July 2017 VA examinations were conducted prior to Correia and Sharp and provides only partial information as described above.  The January 2021 VA examination measured active and passive range of motion and range of motion on repetitive use testing as well as range of motion on weight-bearing and nonweight-bearing; the effect of pain on range of motion is described above.  With regards to flare-ups, the Veteran denied experiencing such flare-ups at her July 2017 and April 2021 VA examinations.  Sharp v. Shulkin, supra.  Her reports of additional functional loss associated with the flare-ups as described above.  Therefore, the December 2004, June 2009, March 2015, August 2015, July 2017, and April 2021 VA examinations are adequate for adjudication purposes.  

In reaching its conclusions, the Board acknowledges the Veteran's belief that her right knee flexion, right knee instability, and left knee PFS is more severe than is reflected by the currently assigned disability ratings.  The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule.  While the Board recognizes that the Veteran is competent to provide evidence regarding her symptomatology, she is not competent to provide an opinion regarding the severity of her symptomatology in accordance with the rating criteria.  See Woehlaert v. Nicholson, supra.  Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than her reports regarding the severity of her right and/or left knee symptoms.

The Board has considered whether staged rating under Hart, supra, are warranted, however, the Board finds that her symptomatology has been stable throughout the period on appeal.  Therefore, assigning staged ratings is not warranted.  Further, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of initial ratings higher than 10 percent for right knee flexion, right knee instability, and left knee PFS.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

2. Depression

The Veteran seeks a higher rating for her service-connected depression.  Specifically, the Veteran asserts that her service-connected knees have worsened her psychiatric symptoms, to include suicidal thoughts.  See e.g. VA Form 21-4138 Statement in Support of Claim, April 21, 2009.  Additionally, the Veteran asserts her medical examinations were inadequate for rating purposes, and that she was given substandard medical examinations.  See Notice of Disagreement, June 15, 2017. 

The Veteran's depression is rated under the General Rating Formula for Psychiatric Disabilities (General Formula).  38 C.F.R. § 4.130. 

Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms.  "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration."  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).  VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5).  See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002).  VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.  Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017).

Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 50 percent rating is warranted if the disability is productive of 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.  38 C.F.R. § 4.130, Diagnostic Code 9434.

A 70 percent rating is warranted if the disability is productive of 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 as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  Id.  

A schedular maximum 100 percent rating is warranted if the disability ir productive of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly 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.  Id.  

In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a).  The rating agency shall assign an evaluation based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment.   

The Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms.  However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code.  Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment.

The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score.  The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5.  The DSM-5 does not contain information regarding GAF scores.  Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5.  See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014).  VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction.  See 80 Fed. Reg. 14,308 (Mar. 19, 2015).  In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.  This appeal was certified to the Board in June 2021.  As such, the DSM-5 applies, and the GAF scores will not be considered.

A review of the record reveals that the Veteran sought mental health treatment from VA and private treatment providers, as well as treatment for his other health needs.  To the extent that the Veteran's treatment records contain information relevant to the severity of his mental health, to include mental health screenings, the Board will summarize this evidence.

Turning to the evidence, of record is an April 2007 VA treatment record indicating that the Veteran reported increased sadness, loss of interest in daily activities, loss of motivation, increased anxiety when running out of medication, and denied suicidal and homicidal ideation. 

Of record is an October 2005 VA treatment record indicating the Veteran was seen for a mental health outpatient consult.  At that time, the Veteran reported that she felt hopeless and helpless at times; had difficulty concentrating; tended to isolate herself; cried easily; had difficulty sleeping at night sometimes, usually once per week; had difficulty falling asleep, and tended to fall asleep during the day, occurring two or three times per week, and on occasion fell asleep standing up while assisting her doctor during surgery as a nurse; occasional suicidal ideation without plan or intent; significant anxiety, with chest pain; and took psychotropic medication.  The Veteran was divorced three times, had two children, and was a high school graduate and trained as a nurse.  Mental status examination showed the Veteran was casually dressed; cooperative; speech was regular rate and normal tone; did not endorse auditory or visual hallucinations; no delusions were elicited; thought processes were organized and goal directed; endorsed occasional suicidal thoughts with no plan or intent; homicidal thoughts were not present; mood appeared somewhat depressed; affect blunted; good insight and judgment; awake, alert, and oriented to person, place, and time.  The VA treatment provider diagnosed depression not otherwise specified. 

Of record is a July 2007 VA treatment record that indicates the Veteran reported less depression and increased motivation with an increase in medication; and she denied suicidal and homicidal ideation. 

Of record is a November 2007 social functioning questionnaire report provided by the Social Security Administration (SSA), completed by the Veteran's child.  At that time, the Veteran's social functioning included getting along well with family, friends, coworkers, and others; not seeing her family and friends much, two or three times per month in frequency, because she lived out of town and driving was difficult for her; did not participate in social groups, such as church, sports, or community events; never attending social activities, such as movies, concerts, or entertainment activities; and that she has never been a social butterfly.  Additional information at this time included the Veteran had anxiety attacks while driving that prevented her from leaving her home unless necessary; being happy one day, and wanting to die the next day; becoming very emotional at the drop of a hat; had previously been independent and worked helping others in the healthcare field, but her depression had increased due to losing independence and difficulty with daily activities. 

Of record is a November 2007 social functioning questionnaire provided by the SSA, completed by the Veteran.  At that time, the Veteran reported she did not have problems getting along with others with the exception of one son that abused her daughter; visited family about once a month, and did not have plants but sat and talked with her children; talked to her children a few times a week on the phone; had a few friends, and rarely talked to anyone except for her children; rarely called her brother and sister; did not have social activities; preferred being at home; had difficulty meeting new people, and difficulty carrying on a conversation with strangers; and did not have a change in social activities because she never had any social activities.  She reported difficulty concentrating and feeling her brain was in a "fog," and difficulty following a conversation.  She stated she could perform a task or chore for about an hour before needing a break; and usually finished most tasks.  The Veteran reported she had no problems paying bills, using the phone, taking care of her home, shopping, and required limited sitting or standing due to back and knee pain.  She stated she usually remembered to take her medication.  The Veteran reported she had to leave work on several occasions due to panic attacks; and sometimes experienced difficulty concentrating due to pain medication.  She reported she was not physically or mentally capable of working full- or part-time due to her mental and physical symptoms.  The Veteran also reported she had severe panic attacks, was very depressed, and had suicidal thoughts. 

During a November 2007 SSA mental residual functional capacity assessment, the Veteran was shown to have moderately limited impact in ability to understand an remember detailed instructions; ability to carry out detailed instructions; ability to work in coordination with or in proximity to others without being distracted by them; ability to interact appropriately with the general public; ability to accept instructions and respond appropriately to criticism from supervisors; ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; ability to respond appropriately to changes in the work setting; and ability to set realistic goals or make plans independently of others.  The Veteran was not significantly limited in other areas of understanding and memory; sustained concentration and persistence; social interaction; and adaptation. 

Of record is a February 2008 VA treatment record that indicates the Veteran reported difficulty sleeping, ongoing depression in terms of her mood and anxiety, difficulty relaxing that interfered with her sleep, and denied any harmful ideation, plan, or intent.

Of record is a February 2009 VA treatment record that indicates the Veteran had depression, that was relatively stable with her medication; with occasional problems with insomnia; was living with her daughter, and the situation was working well; and denied thoughts of self-harm at that time.  The Veteran reported passive suicidal ideation a few months prior, but denied ever having plan or intent. 

Of record is an April 2009 lay statement submitted by the Veteran's daughter, A.B.  At that time, A.B. reported that when she visited the Veteran, she had to help the Veteran get dressed; was often tearful, and expressed suicidal ideation; and was not active, stayed home all the time, and always seemed unhappy. 

Of record is an April 2009 lay statement submitted by the Veteran.  At that time, the Veteran reported experiencing anxiety and depression due to her physical pain; requiring help from her daughter; depression that had not improved; and often having suicidal ideation. 

At a May 2010 VA examination, the Veteran reported she had two adult daughters, and had good relationships with them.  She was divorced, and was not currently dating; she lived alone, and had eight grandchildren.  The Veteran denied having friends, and spent her time seeing her daughters and grandchildren.  She enjoyed sewing, genealogy research, playing bingo, and camping but had not camped recently due to her back and knee problems.  She did not have a history of suicide attempts or violence/assaultiveness.  The examiner found the Veteran had fair psychosocial functioning.  The Veteran did not date or have friendships outside of the family.  The Veteran had outpatient treatment for depression for approximately ten years, to include medication; the Veteran's depression had always persisted despite trials on several medications.

Depressive symptoms at the May 2010 VA examination included disrupted sleep; decreased energy; slightly low concentration; moderate anhedonia; guilt; passive thoughts of being better off dead; daily and moderate depression for ten years; and moderate panic or anxiety symptoms, occurring twice a month, for six to seven years.  The Veteran presented as clean, casually dressed, and walked with a cane.  Her psychomotor activity and speech were unremarkable.  She presented as cooperative; relaxed; constricted affect; depressed mood; oriented to person, time, and place; unremarkable thought process; with passive death thoughts without actual suicide intentions or plans occurring several times a week; without delusions; understood the outcome of her behavior; average intelligence; intact insight; sleep impairment with initial insomnia and interruption, and slept about five hours a night; no hallucinations; appropriate behavior; interpreted proverbs appropriately; without obsessive or ritualistic behavior; and panic attacks.  The Veteran avoided going out due to her anxiety, described as moderate in severity, and occurring twice a month.  The Veteran had passive death thoughts almost daily, and denied serious suicidal ideation, intent, or plans.  The Veteran had good impulse control and no episodes of violence.  She mostly stayed home, and her motivation was negatively affected by her knees.  The Veteran was able to maintain minimum personal hygiene.  Problems with activities of daily living included slight problems with household chores, traveling, and other recreational activities; and moderate problems with shopping, sports or exercise, and driving. 

At her May 2010 VA examination, the Veteran reported she used to be an active person, but had significant difficulty with physical activities; she was demoralized about her loss of functioning.  The Veteran's immediate memory was mildly impaired; she loses her keys on occasion, forgot some appointments, and rarely forgot conversations.  The examiner found the Veteran was unemployed due to her anxiety, knee problems, and back problems.  There was not total occupational and social impairment due to her depression.  There were not deficiencies in judgment, thinking, family relations, work, mood or school due to her depression.  The examiner found reduced reliability and productivity due to her mental health symptoms in combination with her knee pain and mobility problems that interfered with her ability to work and maintain employment.  Her thinking, judgment, and family relations remained intact.  

Of record is an October 2013 VA treatment record that indicates the Veteran was feeling depressed on her current medication and was seeking a different antidepressant.  She stated she continued to take her anxiety medication, and it was helpful.  She was still not sleeping well, but did not want another sleep medication at this time.  The Veteran denied any lethal ideation, plan, or intent.  Mental status examination at this time showed the Veteran presented as casually dressed and groomed; sitting comfortably; cooperative with good eye contact; speech was coherent and goal directed; mood was depressed; affect was full and congruent; thought process significant for absence for any overt lethal ideation, paranoia, or delusions; no perceptual abnormalities in terms of any auditory of visual hallucinations; cognitively she was oriented to person, time, and place; and her insight and judgment were intact.  

At an October 2020 VA examination, the examiner opined the Veteran's depression manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.  At this time, the Veteran reported she had not worked in 15 years.  The Veteran was currently under mental health treatment, taking medication, and had never been psychiatrically hospitalized.  She was previously suicidal without any attempts, and was not currently suicidal. 

Current symptoms at the October 2020 VA examination included depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; and disturbances of motivation and mood.  Behavioral observations showed the Veteran was casually dressed and neatly groomed; no apparent speech abnormalities; responded appropriately to questions; some mild psychomotor agitation in the form of leg bouncing that occurred off and on; no observed hallucinations or delusions; mood was neutral; and her range of affect was normal.  The examiner noted the symptoms for depressed mood included anxiety; chronic sleep impairment; mild memory loss; and disturbances of motivation and mood.  The examiner noted the symptoms for a panic disorder included panic attacks more than once a week.  

At the October 2020 VA examination, the Veteran reported her mood was depressed much of the time; having loss of interest and energy; normal appetite; trouble going to sleep and sleep frequently interrupted, averaging four hours of sleep a night; psychomotor retardation was reported; memory and concentration were poor; denied suicidal ideation for several years, and had never made a suicide attempt; and panic attacks causing shortness of breath, accelerated heart rate, trembling, and sweating; worried all the time with muscle tension; and felt irritable at times.  The October 2020 VA examiner found the Veteran's depression impacted her ability to work due to difficulty sustaining energy and motivation to complete assignments at work; and panic attacks occurring two or three times a week on average. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities, to include her depression.  However, there is no indication from the treatment notes of record that the Veteran has reported mental health symptoms that are worse than those noted above. 

Based on the foregoing, the Board notes that the Veteran exhibits symptoms compatible with her current 50 percent rating, but she also has some symptoms consistent with a higher 70 percent rating.  The Veteran showed social impairment due to symptoms such as depressed mood, anxiety, difficulty concentrating, impaired sleep, some social isolation, suicidal ideation, and rare intermittent passive thoughts of death.  Additionally, the Veteran presented with symptoms that included blunted affect, anxiety attacks that interfered with driving, "brain fog," impaired memory, difficulty or inability to continue working, and initial insomnia and interrupted sleep.  The Veteran and her daughter reported that the Veteran had minimal social interaction, and regularly interacted with her family, and had significant anxiety and depressive symptoms.  However, the Veteran consistently reported a good relationship with her adult daughters and grandchildren, enjoyed some hobbies, and was able to independently perform most activities of daily living.  Specifically, the Veteran reported she was unable to work and had difficulty getting dressed or doing household chores.  However, the Veteran's impairment was also as a result of a combination of her physical symptoms and mental health impairment, such as difficulty getting dressed or cooking meals.  The Veteran has consistently reported being able to perform mental tasks such as paying bills, making phone calls, and shopping.  The Veteran has consistently presented as appropriately groomed, cooperative, oriented in all spheres, and without delusions or hallucinations.  With regard to occupational impairment, the Veteran demonstrated some impairment due to symptoms such as anxiety, panic attacks, sleep disturbance and daytime fatigue and difficulty with concentration and focus.  In this regard, the Veteran reported being unable to work due to her physical and mental impairments.  However, the Veteran was able to perform her duties as a surgical nurse until her physical impairments interfered with her ability to continue employment.  She reported that her motivation and mood were negatively affected by her knees, and had significant difficulty with physical activities resulting in feeling demoralized about her loss of functioning.  Specifically, the May 2010 VA examiner found that her psychiatric disability in combination with her knees and back problems interfered with employment.  Although the Veteran reported increased mental health symptoms such as depression, anxiety, and difficulty concentrating, the Veteran acknowledged impaired industrial function as due to a combination of mental and physical disabilities.  No impairment to thinking was demonstrated.  Judgment was not impaired as it was consistently found to be intact or good during the appeal period.  

In assessing the severity of her depression, the Board has considered the competent lay assertions regarding symptoms experienced and observed.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In affording the benefit of the doubt to the Veteran, a higher rating of 70 percent is warranted; however, a 100 percent rating is not warranted.  The Board finds that the frequency and severity of such symptoms most nearly approximate deficiencies in most areas, such as judgment, thinking, or mood.  However, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating.  She does not have both total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly 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; or memory loss for names of close relatives, own occupation or own name.  The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list but are examples of the type and severity of symptoms that indicate a certain level of disability.  After examining the Veteran's displayed unspecified anxiety disorder, however, the Board concludes that the Veteran's symptomatology more nearly approximates the criteria for a rating of 70 percent, but no higher, for this period on appeal.

The Board has considered whether a staged rating under Hart, supra is appropriate; however, the Board finds that her symptomatology was been stable throughout the period on appeal.  Therefore, assigning a staged rating is not warranted.  The Veteran nor her representative have not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein.  Doucette v. Shulkin, 28 Vet. App. 366 (2017).  

 

 

J. CONNOLLY

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mariah N. Sim, 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.