Citation Nr: 21040709 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-32 399 DATE: July 6, 2021 ORDER A disability rating in excess of 50 percent for an acquired psychiatric disorder is denied. A disability rating in excess of 10 percent for instability of the left knee is denied. A disability rating in excess of 10 percent for limitation of motion of the left knee is denied. A disability rating of 10 percent, but no more, for a cartilage condition of the left knee effective August 10, 2015 is granted. REMANDED A disability rating in excess of 100 percent for breast cancer is remanded. An effective date earlier than May 21, 2018 for the assignment of service connection for breast cancer is remanded. FINDINGS OF FACT 1. The Veteran's service connected psychiatric disorder did not manifest total occupational and social impairment or occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. 2. The Veteran's service connected left knee disabilities did not manifest ankylosis, a tibial or fibular impairment, genu recurvatum, or moderate or severe recurrent subluxation or lateral instability during the period on appeal. 3. The Veteran's service connected left knee disabilities did not manifest a flexion of 30 degrees or less, an extension limited to 15 degrees or more, or a flexion limited to 45 degrees or less and an extension limited to 10 degrees or more during the period on appeal. 4. The Veteran manifested a symptomatic semilunar cartilage condition during the period on appeal, but the Veteran did not manifest a semilunar cartilage condition with locking, pain, and effusion into the joint during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434. 2. The criteria for a disability rating in excess of 10 percent for instability of the left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code 5257 (2020), 4.71a, Diagnostic Codes 5256, 5262-5263. 3. The criteria for a disability rating in excess of 10 percent for limitation of motion of the left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5260-5261. 4. The criteria for a disability rating of 10 percent, but no more, for a cartilage condition of the left knee effective August 10, 2015 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5258-5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from July 1988 to July 2008. Unfortunately, the Veteran passed away in April 2019. The Veteran's surviving spouse was substituted as the Appellant in January 2019. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) made in February 2016 and in December 2018. This appeal is being adjudicated under the legacy appellate framework. The Appellant testified at a personal hearing before the Board in February 2016, and a transcript of the hearing is of record. The Board notes that the Appellant's representative was not present at the February 2016 hearing, but, during the course of the hearing, the Appellant knowingly waived his right to be represented in lieu of rescheduling the hearing for a later date when his representative could attend. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 1. A disability rating in excess of 50 percent for an acquired psychiatric disorder is denied. At issue is whether the Veteran should have been assigned a disability rating in excess of 50 percent for an acquired psychiatric disorder. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. The Veteran first filed for service connection in November 2008, and the RO granted service connection in June 2009 and assigned a disability rating of 30 percent effective the day after separation from service. In August 2015 , the Veteran filed an increased rating claim, and, in February 2016, the RO assigned a disability rating of 50 percent effective the date the increased rating claim was received. The Veteran appealed the disability rating. Disability ratings for mental disorders are evaluated pursuant to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a disability rating of 50 percent is assigned when a mental disorder causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A disability rating of 70 percent is assigned when a mental disorder causes 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 work like setting); inability to establish and maintain effective relationships. Id. A total disability rating is assigned when a mental disorder causes 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating, because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. See Mauerhan. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio. The Veteran's treatment records indicate that the Veteran manifested psychiatric symptomology from the beginning of the period of appeal until the Veteran passed away. The Veteran underwent a VA examination in February 2016. The Veteran reported that she had been happily married for 24 years, and that her two adult children live with her. The Veteran also indicated that she volunteered at the local humane society and was involved in her local American Legion. The Veteran stated that, since 2009, she had been employed full time as a customer service representative at a business operated by her and her spouse, and that she sometimes gets tired dealing with customers. The symptoms identified by the examiner included: difficulty adapting to stressful circumstances including work or worklike settings; depressed mood; disturbances in motivation or mood; adequate judgement and insight; spontaneous, relevant, and goal-directed thought processes. The examiner opined that the Veteran manifested occupational and social impairment with reduced reliability. The Veteran underwent another VA examination in August 2018. The Veteran described her relationship with her spouse of 26 years as supportive. The Veteran indicated that she was no longer volunteering at the humane society (but that she had enjoyed volunteering at the time), and that she maintained electronic contact with a few friends. The Veteran reported that her husband had sold the business that she was employed at, and that she was not seeking work at the time. The symptoms identified by the examiner included: depressed mood; disturbances in motivation or mood; logical and goal-directed thought processes; and intact cognition based on verbal production. The examiner did not identify a problem with the Veteran's judgement. The examiner opined that the Veteran manifested occupational and social impairment with reduced reliability and productivity. The Appellant testified at a personal hearing before the Board in February 2021. The Appellant had indicated that the Veteran's mental state had deteriorated to the point that she did not desire to leave the house anymore except to go to the pet store with her daughter to look at cats. Nevertheless, the Appellant also indicated that the Veteran's physical disabilities also contributed to the Veteran's reluctance to leave her house. The Appellant also reported that a great deal of the Veteran's stress was related to a cancer diagnosis. See Transcript. The weight of the evidence indicates that the Veteran did not meet the criteria for a total disability rating under the criteria for evaluated service connected psychiatric disorder. In order to meet the criteria for a total disability rating, the Veteran must be totally occupationally and socially impaired. The evidence of record indicates that the Veteran was able to maintain good relationships with her spouse, children, and a few friends throughout the period on appeal. Additionally, the Veteran was able to successfully work as a customer service representative until the business that she worked at was sold, and although the Veteran did not seek additional employment the evidence of record does not establish that, but for her mental disorder alone, she would not have been able to work gainfully as a customer service representative at another business if she chose. Finally, the Board notes that the record is silent for a competent medical opinion suggesting that the Veteran's mental disorder manifested total occupational and social impairment. Therefore, the Veteran was not totally occupationally and socially impaired, and the criteria for a total disability rating were not met. The weight of the evidence indicates that the Veteran did not meet the criteria for a disability rating in excess of 70 percent. In order to meet the criteria for a disability rating of 70 percent, the Veteran needed to manifest occupational and social impairment with deficiencies in most areas including such as work, school, family relations, judgment, thinking, or mood. The Board recognizes that the Veteran manifested difficulty adapting to stressful circumstances including work or worklike settings. As discussed above however, the evidence does not establish that the Veteran's mental illness prevented her from working or otherwise being deficient as a customer service representative. The Veteran was not in school, but this is normal for her age cohort. The Veteran maintained good relationships were her family. The Veteran was neither deficient in her thinking or judgment, because VA examiners consistently found that she manifested goal-directed though processes; and the VA examinations indicate that her judgement was intact or failed to identify a problem with her judgement. The Board acknowledges that the Appellant testified that the Veteran's mental condition deteriorated to the extent that the Veteran would avoid leaving the house. Nevertheless, the Appellant also conceded that this was due to the severity of her physical disabilities rather than her mental disorder. The Board also acknowledges that the Veteran manifested depressed mood as well as disturbances in motivation or mood. When balancing this fact against the Veteran's work, school, and family life as well as her judgement and thinking, the Board is not convinced that the Veteran's mood was sufficiently deleterious to characterize her mental state as being deficient in most areas. Finally, the Board notes that the record is silent for a competent medical opinion indicating that the Veteran manifested occupational and social impairment in most areas. Therefore, the criteria for a disability rating of 70 percent have not been met. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran manifested total occupational and social impairment or occupational and social impairment with deficiencies in most areas. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating in excess of 50 percent for an acquired psychiatric disorder is denied. 2. A disability rating in excess of 10 percent for instability of the left knee is denied. 3. A disability rating in excess of 10 percent for limitation of motion of the left knee is denied. 4. A disability rating of 10 percent, but no more, for a cartilage condition of the left knee effective August 10, 2015 is granted. At issue is whether the Veteran should have been assigned increased disability ratings for her left knee disability. The weight of the evidence indicates that the Veteran is entitled to a separate compensable disability rating for a semilunar cartilage condition of the left knee effective August 10, 2015 is granted. The Veteran first filed for service connection in November 2008, and the RO granted service connection in June 2009 and assigned a noncompensable disability rating effective the day after separation from service. In August 2015 , the Veteran filed an increased rating claim, and, in February 2016, the RO assigned a disability rating of 10 percent for limitation of motion and a disability rating of 10 percent for instability. The Veteran appealed the disability rating. Disability ratings of the left knee are assigned pursuant to Diagnostic Codes 5003 & 5256-5263. Diagnostic Code 5003 is not raised by the record, because in order to be assigned a disability rating in excess of 10 percent, the Veteran must have limitation of motion of two or more major joints or minor joint groups; and the left knee is the only joint that the Veteran challenged the evaluation of. Therefore, Diagnostic Code 5003 does not provide an adequate basis for an increased disability rating. Diagnostic Codes 5256 (ankylosis); 5262 (tibial or fibular impairment); and 5263 (genu recurvatum) are not raised by the record either, because the Veteran did not manifest ankylosis, a tibial or fibular impairment, or genu recurvatum during the period on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5263. During the pendency of the appeal, revised criteria for Diagnostic Code 5257 became effective on February 7, 2021. See 85 Fed. Reg. 76460 (November 30, 2020). By law, amendments to regulations cannot be construed to have retroactive effect unless their language requires such a result. See Kuzma v. Principi, 341 F.3d 1327 (2003). There, however, is no such language in the amendments to the regulations at issue in this case. Unfortunately, the Veteran passed away prior to the effective date of the new rating criteria. Consequently, the Board shall not consider the new rating criteria in assigning a higher disability rating. Under Diagnostic Code 5257 prior to February 7, 2021, a disability rating of 10 percent was assigned for slight recurrent subluxation or lateral instability, and a disability rating of 20 percent was assigned for moderate recurrent subluxation or lateral instability; and a disability rating of 30 percent was assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). Under Diagnostic Code 5259, a disability rating of 10 percent is assigned for being symptomatic of the removal of semilunar cartilage, and, under Diagnostic Code 5258, a disability rating of 20 percent is assigned for dislocated semilunar cartilage with episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5258-5259. Under Diagnostic Code 5260, a disability rating of 10 percent is assigned when flexion is limited to 45 degrees, and a disability rating of 20 percent is assigned when flexion is limited to 30 degrees; and a disability rating of 30 percent is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a disability rating of 10 percent is assigned when extension is limited to 10 degrees, and a disability rating of 20 percent is assigned when extension is limited 15 degrees. A disability rating of 30 percent is assigned when extension is limited to 20 degrees, and a disability rating of 40 percent is assigned when extension is limited to 30 degrees; and a disability rating of 50 percent is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran's treatment records indicate that the Veteran manifested knee symptomology from the beginning of the period of appeal until the Veteran passed away. The Veteran underwent a VA examination in February 2016. The Veteran reported the left knee symptoms including: pain, recurrent swelling, giving way, and feelings of instability. The Veteran denied flare-ups. The Veteran's flexion was to 120 degrees, and the Veteran's extension was to zero degrees. The examiner observed pain, including pain on weight bearing. Nevertheless, the examiner indicated that additional functional loss could not be opined on without resorting to mere speculation. The Veteran was able to perform repetitive range of motion testing without additional functional loss. The examiner opined that the Veteran had a semilunar cartilage condition, and the examiner also noted a history of effusion into the joint. Joint stability testing revealed slight instability. The examiner opined that the Veteran did not manifest ankylosis or a tibial or fibular impairment. The examiner did not diagnose the Veteran with genu recurvatum. The Appellant testified at a personal hearing before the Board in February 2021 that the Veteran manifested severe left knee symptoms that were so deleterious as to discourage the Veteran from limiting the house except on rare occasions. See Transcript The Veteran is not entitled to a disability rating in excess of 10 percent for instability of the left knee. In order to meet the criteria for a disability rating in excess of 10 percent, the Veteran needed to manifest moderate or severe recurrent subluxation or lateral instability. The Veteran manifested instability throughout the period on appeal, but joint stability testing did not indicate that it was deleterious enough to be considered moderate or severe. Therefore, a disability rating in excess of 10 percent for instability is denied. The Veteran is entitled to a separate compensable disability rating of 10 percent effective August 10, 2015 for a semilunar cartilage condition. In order to meet the criteria for a disability rating of 10 percent, the Veteran needed to manifest a symptomatic cartilage condition. In February 2016, a VA examiner indicated that this was the case. Therefore, the Veteran is entitled to a separate compensable disability rating for a semilunar cartilage condition. The Veteran is not entitled to a disability rating in excess of 10 percent for a cartilage condition. In order to meet the criteria for a disability rating in excess of 10 percent the Veteran needed to manifest a cartilage condition with locking, pain, and effusion into the joint. The Veteran clearly manifested pain, but this has already been compensated by the Veteran's disability rating based on limitation of motion. The Veteran clearly had a history of effusion into the joint. Nevertheless, the evidence does not demonstrate that the Veteran manifested effusion into the joint during the period on appeal. Finally, the evidence does not demonstrate that the Veteran manifested locking during the period on appeal. Therefore, the evidence of record does not indicate that the Veteran is entitled to a disability rating in excess of 10 percent for a cartilage condition. The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 10 percent for limitation of flexion; a disability rating in excess of 10 percent for limitation of extension; or two separate compensable disability ratings for flexion and extension. In order to meet the criteria for a disability rating in excess of 10 percent for limitation of flexion, the Veteran needed to manifest a flexion of 30 degrees or less. In order to meet the criteria for a disability rating in excess of 10 percent for limitation of extension, the Veteran needed to manifest an extension limited to 15 degrees or more. In order to meet the criteria for two separate compensable disability ratings for flexion and extension, the Veteran needed to manifest a flexion limited to 45 degrees or less and an extension limited to 10 degrees or more. The Veteran underwent range of motion testing during the period on appeal, and the Veteran did not meet these requirements. Therefore, the criteria for an increased disability rating or a separate compensable disability rating for limitation of flexion or extension have not been met. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating even after taking additional functional impairment into consideration. In February 2016, a VA examiner opined that additional functional impairment could not be confirmed without resorting to mere speculation. Therefore, any additional functional impairment that the Veteran may have manifested during the period on appeal was so slight as to defy quantification, and additional functional impairment cannot serve as an adequate basis for an increased disability rating. Here, the weight of the probative evidence of record simply demonstrate that the Veteran should have been assigned a separate compensable disability rating for a cartilage condition of the left knee. Therefore, the evidence in this case is so evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a separate compensable disability rating for a left knee disability rating is granted. REASONS FOR REMAND 1. A disability rating in excess of 100 percent for breast cancer is remanded. 2. An effective date earlier than May 21, 2018 for the assignment of service connection for breast cancer is remanded. In a December 2018 rating decision, the agency of original jurisdiction granted service connection for breast cancer with an evaluation of 100 percent effective from May 21, 2018. The Veteran filed a timely notice of disagreement (NOD) in April 2019 challenging the evaluation of her disability rating for breast cancer as well as the effective date for the assignment of service connection for breast cancer. The record is silent for a statement of the case (SOC) responsive to the Veteran's NOD. Therefore, this matter must be remanded for the purposes of ordering a SOC to be issues. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: Arrange to provide the Veteran with a SOC responsive to the following issues: a disability rating in excess of 100 percent for breast cancer; and effective date earlier than May 21, 2018 for the assignment of service connection for breast cancer. Do not certify or return these issues back to the Board unless the Appellant perfects a timely appeal to the Board after the issuance of the SOC. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.