Citation Nr: 21041230
Decision Date: 07/08/21	Archive Date: 07/08/21

DOCKET NO. 16-50 817
DATE: July 8, 2021

ORDER

Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected disabilities, is denied.

Entitlement to an evaluation of 30 percent, but no higher, prior to November 5, 2019 for service-connected depressive disorder is granted.

Entitlement to an evaluation in excess of 70 percent since November 5, 2019 for service-connected depressive disorder is denied.

Entitlement to an evaluation in excess of 40 percent for service-connected back disability is denied.

Entitlement to an initial evaluation in excess of 10 percent prior to November 4, 2019 left lower extremity neuropathy is denied. 

Entitlement to an evaluation in excess of 20 percent since November 4, 2019 for left lower extremity neuropathy is denied.

Entitlement to an evaluation in excess of 20 percent for left knee instability is denied.

Entitlement to a separate rating of 10 percent for left knee limitation of flexion is granted. 

Entitlement to an evaluation in excess of 10 percent for right knee limitation of flexion is denied.

Entitlement to a separate rating of 10 percent for right knee instability is granted.

Entitlement to a separate 10 percent rating for right knee limitation of extension since May 17, 2017 is granted.

REMANDED

Entitlement to service connection for a pulmonary sleep disorder, to include obstructive sleep apnea (OSA) and as secondary to service-connected disabilities, is remanded.

FINDINGS OF FACT

1. The preponderance of the evidence is against finding that the right shoulder disability had manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the right shoulder disability did not develop in service and is not causally related to service, nor did the service-connected back disability or right elbow disability cause or aggravate the right shoulder disability.

2. Prior to November 5, 2019, the Veteran's depression most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

3. Beginning November 5, 2019, the Veteran's depression manifests by occupational and social impairment with deficiencies in most areas, such as social relations, occupational functioning, thought process, and mood, but neither the symptoms nor overall impairment have more nearly approximated total social impairment.

4. The Veteran's back disability has been productive of limitation of motion, pain, and weakness, with limitation of flexion to 15 degrees, but no ankylosis.

5. Prior to November 4, 2019, the evidence shows that the Veteran's left lower extremity sciatica more closely approximated mild, and not moderate, incomplete paralysis of the sciatic nerve.

6.  From November 4, 2019, the evidence shows that the Veteran's left lower extremity sciatica more closely approximates moderate incomplete paralysis of the sciatic nerve; but does not more nearly approximate moderately severe or severe incomplete paralysis, or complete paralysis.

7. For the entire period on appeal, the evidence shows there is instability in the Veteran's left knee with the use of knee braces and canes, and ligament stability testing was noted as abnormal with instability and pain, which more nearly approximates moderate instability. 

8. For the entire period on appeal, the left knee had range of motion no worse than limitation of flexion to 60 degrees, with normal extension, and complaints of painful motion.  

9. For the entire period, the right knee had range of motion no worse than limitation of flexion to 90 degrees with painful motion. 

10. For the entire period on appeal, the evidence shows there is instability in the Veteran's right knee with the use of knee braces and canes, he has buckling, and his knee gives way, which more nearly approximates slight instability.

11. Beginning May 17, 2017, the right knee had range of motion no worse than limitation of extension to 10 degrees and complaints of painful motion.  

CONCLUSIONS OF LAW

1. The criteria for service connection for a right shoulder disability, including as secondary to the back disability or right elbow disability, have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

2. Prior to November 5, 2019, the criteria for a disability rating of 30 percent, but no higher, for depression are met. 38 U.S.C. § 1101, 5107; 38 C.F.R. §§ 4.7, 4.21, 4.130, Diagnostic Code (DC) 9434.

3. Beginning November 5, 2019, the criteria for a disability rating in excess of 70 percent for depression are not met.  38 U.S.C. § 1101, 5107; 38 C.F.R. §§ 4.7, 4.21, 4.130, DC 9434.

4. The criteria for an evaluation in excess of 40 percent for service-connected back disability have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237.

5. The criteria for an evaluation in excess of 10 percent prior to November 4, 2019 for left lower extremity neuropathy have not been met.  38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.21, 4.124, DC 8520.

6. The criteria for a disability rating greater than 20 percent, from November 4, 2019, for left lower extremity sciatica, are not met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.21, 4.124, DC 8520.

7. The criteria for an evaluation in excess of 20 percent for left knee disability have not been met.  38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.20, 4.71a, DC 5257.

8. The criteria for a separate evaluation of 10 percent for left knee limitation of flexion is met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260.

9. The criteria for an evaluation in excess of 10 percent for right knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260.

10. The criteria for a separate rating of 10 percent for right knee instability have been met.  38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.20, 4.71a, DC 5257.

11. The criteria for a separate 10 percent rating for right knee limitation of extension since May 17, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5261.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July to October 1982 with the U.S. Air Force and from October 1988 to July 1993 with the U.S. Army.  He also had additional inactive service.  He testified before the undersigned Veterans Law Judge during a July 2017 Travel Board hearing and a transcript is of record.

In a January 2019 Board decision, the appeal was remanded for further development.  That development having been completed to the extent possible, the matters are again before the Board for appellate review. The remand directives instructed the RO to schedule the Veteran for new VA examinations, as well as opinions for the service connection claims.  The Board finds that but for the claim for sleep apnea, the RO substantially complied with the remand directives for the rest of the claims on appeal.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Subsequent to the 2019 Board remand development, in an August 2020 rating decision, the Veteran's claim for service connection for right lower extremity sciatic neuropathy and femoral neuropathy was granted with separate 10 percent ratings, effective June 14, 2012, and entitlement to TDIU effective August 12, 2011 was granted.  As such, those issues are no longer on appeal before the Board, though he is within the one-year timeframe to file a disagreement with the decision if he so desires.  The RO also increased the rating for the Veteran's service-connected depression from 10 percent to 70 percent, effective November 5, 2019, the date entitlement first arose; and granted a 20 percent rating for the left lower extremity, effective November 4, 2019.  As these ratings do not constitute full grants, these issues remain on appeal.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

As noted, but for the claim for sleep apnea, as discussed in the remand portion below, the Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence.  Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Thus, the Board need not discuss any potential issues in this regard.  Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of the Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010).

I. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Certain chronic diseases, including arthritis, will be presumed related to service if they were noted as chronic in service or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause.  See 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 

In addition, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability.  See 38 C.F.R. § 3.310. Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

In determining whether service connection is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

1. Right Shoulder

The question for the Board is whether the Veteran has a chronic right shoulder disability that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether it was otherwise related to service.

Upon review of the record and evaluation of the Veteran, the Board finds that service connection for a right shoulder disability on any basis is not warranted. 

The Veteran contends that he has a right shoulder disability that was incurred in service when he injured his back, elbow, and knees; or in the alternative, due to his service-connected back disability or right elbow disability. 

First, the Board notes the Veteran has a current right shoulder disability.  See 2020 VA examination report showing right glenohumeral joint osteoarthritis.  While the shoulder disability is a chronic disease under 38 C.F.R. § 3.309(a), there is no persuasive evidence showing the condition became chronic during service or manifested to a compensable degree within a presumptive period, and continuity of symptomatology is not established.

Specifically, while the Veteran is competent to report having experienced symptoms of shoulder pain and related symptoms in service and since service, he has not been shown to have the requisite medical knowledge or expertise to be deemed competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis.  The issue is medically complex, as it requires knowledge and interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Further, although the Veteran reported he has had pain since he injured his shoulder in service, the records submitted do not show care until 2011.  Specifically, the Veteran's VA treatment records dated in December 2011 show that he was seen for right shoulder pain after he woke up from sleeping on a couch a year prior and the pain did not resolve.  He stated no previous history of shoulder trauma (emphasis added).  In February 2012, he was diagnosed with mild right shoulder osteoarthritis.  Therefore, there is no indication the Veteran's shoulder disability had manifested to a compensable degree within one year of separation. 

Next, the Veteran's service treatment records (STR) reflect numerous records and treatment for his knees and back.  However, they do not document complaints or treatment for any ongoing right shoulder strain or other ongoing or chronic shoulder disability.  For example, the Veteran reported the injury when he fell in service and that he injured his bilateral knees, right elbow, and back; he thereafter consistently reported knee pain and trouble running as well as chronic low back pain due to this injury.  In the May 1993 report of medical history, he marked yes to recurrent back pain, painful shoulder or elbow, trick or locked knee, and foot trouble; however, in the clinical evaluation, it was noted he had issues with his bilateral knees, elbow, lower back and headaches  but nothing as to the shoulder.  The discharge examiner also did not indicate any right shoulder condition.  

As such, the plethora of medical treatment and complaints of bilateral knee, back, and elbow pain weighs heavily against any assertion he had injured his shoulder and had chronic shoulder pain as well, because it is reasonable to assume that since he was taking the time to receive medical care and to complete the medical history forms and affirmatively indicate the medical problems he had, he would have also reported any ongoing shoulder pain.  Rather, as summarized above, his medical records showed ongoing knee and back pain, so any alleged shoulder pain had resolved.  This evidence affirmatively shows that while he asserts that he had some shoulder pain during service, it had resolved by the time of his separation.   

That notwithstanding, the Board must also consider whether service connection for the shoulder disability may still be granted on a non-presumptive direct-incurrence or, as argued by the Veteran, on a secondary basis. 

However, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's shoulder condition and an in-service injury, event or disease.  See 38 U.S.C. § 1110; Holton, 557 at 1366; 38 C.F.R. § 3.303(a), (d). 

The Veteran applied for service connection for, in part, his shoulder in 2012.  The November 2012 VA examination report showed the Veteran reported that he has had the gradual onset of right shoulder pain that is dull to sharp.  The examiner opined that the Veteran did not have an injury to the right shoulder on active duty, but rather has had a gradual onset of right shoulder pain and limited range of motion.  

Subsequent to the 2013 rating decision which denied the claim, the Veteran stated during a mental health VA examination that he injured his back, both knees, both arms and right shoulder during his military service.  Specifically, he reported that during a field training exercise, he was going up a hill, wearing his gear and that the hill was slick due to rain and he slipped.  He reported that he received medical treatment immediately as well as during his military service.  However, as discussed above, his STRs are void of any mention of shoulder complaints or injury, though he consistently reported the injuries to his back, knees, and right elbow.  

As for his secondary service-connection claim, the Veteran has been service connected for a back disability since July 1993 and for the right elbow since June 2012. 

First, the 2012 examiner further opined the evidence is against finding that the Veteran's low back disability caused the right shoulder pain based on the evidence and based on medical research and guidelines.

Thereafter, in the 2017 Board hearing, he provided sworn testimony that a doctor related the right shoulder disability to his now service-connected right elbow condition; "they said that well it could be, you know, possibly connected." However, the Veteran's lay testimony recalling what a physician told him, i.e., "hearsay medical evidence," cannot constitute actual medical evidence, as "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." See Robinette v. Brown, 8 Vet. App. 69 (1995).  Here, not only was the Veteran's testimony as to a nexus statement purportedly made by a physician not "medical" evidence of such, but his testimony is not supported by the records from any such physician nor has he provided any opinion corroborating this statement.

Regardless, he was afforded another examination following the 2019 Board remand based on this assertion.  During the November 2020 examination, the Veteran claimed that the condition began in 1988 during service after he fell during training and injured his right shoulder.  The November 2020 VA examiner opined that there is no evidence in medical literature that an elbow disability would cause a shoulder disability.  The examiner stated he reviewed the medical records, and based on the Veteran's history and the physical examination, opined that the right shoulder disability "is less likely than not proximately due to or the result of right lateral epicondylitis (limitation of flexion), right elbow tendonitis."

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Nieves-Rodriguez, 22 Vet. App. 295.  In this case, the examiners were aware of the Veteran's full medical history and provided articulated opinions.  The Board therefore attaches probative value to the 2012 and 2019 opinions.  There are no other competent probative medical opinions to the contrary.

Further, the Veteran's medical records do not indicate that his condition is due to service or related to any service-connected disability.  Rather, he periodically reported shoulder pain and was diagnosed and treated for shoulder pain.  In January 2020, his doctor stated that the "likely shoulder pain is mechanical originating from subacromial space (most likely subacromial bursitis vs. rotator cuff tendinopathy)" and that "we have a higher suspicion for mechanical etiology of his shoulder pain."

While the Veteran may sincerely believe that his current shoulder disability had its onset in service or has been caused or aggravated by his service-connected back or elbow, these questions of causation or etiology are distinctly medical questions requiring medical expertise and training, and hence are beyond the lay competence.  The Veteran, as a layperson, has not been shown to possess the requisite expertise or knowledge to address these questions.  Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  Hence, the Veteran, as a layperson, is not competent to address these questions and his opinions of service-origin or shoulder-related-etiology of claimed shoulder disability do not serve to support the claim, beyond what he may have observed or experienced in service and following service.  Jandreau, 1372.

In addition, while the Veteran testified at the 2017 hearing to shoulder pain after the fall in service, the medical evidence weighs against any such injury being attributable to the shoulder.  As noted above, STRs reflect no treatment for the shoulder or any other indication that the Veteran had reported his shoulder when he reported his back, knees, and elbow pain throughout his time in service, and the Veteran underwent a discharge examination, and no shoulder condition or pain was found.  Thus, while the Veteran is certainly competent to address symptoms he experienced in service and treatment he received, service records do not support these statements, but rather support his back, bilateral knees, and right elbow conditions were treated in service, without any shoulder issues.  The Veteran's statements as to how he injured his shoulder have also not been consistent  as discussed above, he stated he first injured his shoulder after waking up on a couch in 2011; then stated it was due to the injury in service after he was denied service connection; then argued it was due to his back disability, then argued it was due to the right elbow disability.  Further, as to whether the shoulder condition was caused or aggravated by the service-connected right elbow or back disability; again, the Veteran is not competent to opine as to a shoulder or elbow/back-related-etiology; nor has he provided a competent medical nexus showing a relationship between his current shoulder condition and his service-connected right elbow/back disability.

On the other hand, the Board finds that the VA opinions contain clear conclusions, which were based on a review of the claims folder and medical literature, as well as in-person examinations.  As such, the preponderance of the evidence is against a shoulder disability being causally related to service or caused or aggravated by the Veteran's service-connected right elbow or back disability.  An adequate rationale was provided for this opinion, including that a shoulder disability relating to service is simply not supported by the record, and that medical science does not support the Veteran's service-connected elbow or back causing or aggravating his shoulder disability. 

Accordingly, the Board concludes service connection for a right shoulder disability is not warranted on either a direct or secondary basis.  See 38 C.F.R. §§ 3.303, 3.310.  The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim on all bases considered, that doctrine is not applicable, and the claim is denied.  See 38 U.S.C. § 5107(b); Gilbert, 55-56.

II. Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

VA should interpret reports of examination in light of the whole recorded history, reconciling the reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. See 38 C.F.R. § 4.7.

Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Evidence obtained during, or leading up to the appeal period may indicate that the degree of disability increased or decreased during the pendency of the appeal. In such circumstances, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending, and "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107(b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.

The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, on the claim.

1. Depressive Disorder

The Veteran contends that his current service-connected depression is worse than rated.  His disability is currently rated as 10 percent disabling prior to November 5, 2019, and as 70 percent disabling thereafter. 

Acquired psychiatric disorders such as depression are evaluated under (Diagnostic Code) DC 9434 by applying the criteria found under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. 

The pertinent regulations as to mental health ratings were provided to the Veteran in the Statement of the Case and will not be repeated here.

Prior to November 5, 2019

Based on the evidence of record, the Board concludes that a disability rating of 30 percent is warranted prior to November 2019. The medical and lay evidence of record indicate that the Veteran's symptoms of depression included depressed mood, anxiety, panic attacks that occur weekly or less; chronic sleep impairment; flattened affect; and disturbances of motivation and mood. 

For example, in the July 2013 VA examination, the examiner diagnosed the Veteran with moderate recurrent major depressive disorder and anxiety disorder.  The examiner opined the disorder caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication.  The examiner then noted that the Veteran has frequent worries, indecisiveness, difficulty relaxing/restlessness, general nervousness, worries about the future, feelings of shakiness and panic attacks; persistent decreased interest/anhedonia, regular down/depressed mood, persistently reduced energy level, reduced appetite, self-criticalness, feeling like a failure, disappointment in himself, and reduced appetite; as well as reduced concentration, sleep disturbance and irritability.  The examiner noted that the main symptoms of the Veteran's depression include: depressed mood, anxiety, panic attacks that occur weekly or less; chronic sleep impairment; flattened affect; disturbances of motivation and mood.  The Veteran also endorsed experiencing panic attacks marked by difficulty breathing, sweating, tightness of chest and feelings of doom that occur several times per week.  He denied symptoms suggestive of more serious mental illness, including hypomania, mania, paranoia and auditory and visual hallucinations. 

Thereafter, in the January 2016 VA examination, the examiner opined that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.  The examiner only discussed the Veteran's unrefreshed sleep issues as partially related to his sleep apnea, but did not discuss any other symptoms.  The examiner discussed many of the Veteran's physical conditions as they affected his depression as they continued to worsen as well; but noted that the Veteran has maintained employment despite his ailments.  It was noted that the Veteran was alert and oriented with a cooperative attitude and normal speech.  His mood was tired, and his affect was mildly constricted and congruent.  He denied having any hallucinations, delusions or obsessions, and no suicidal or homicidal ideation was          reported.  His thought process was noted to be logical and goal directed; and his memory, attention and concentration were grossly within normal limits with fair insight and judgment.

The Board notes that there have been variations in the severity of the Veteran's depression during this period.  In a January 2012 VA treatment record, the Veteran stated that he presented with depression and insomnia and reported his depression has increased since losing his job a year ago due to his physical disabilities.  In May 2012, he was noted to be alert, cooperative, and well oriented with no history or evidence of a thought disorder.  He spoke low with little affect, but he says he is not very depressed at present.  In December 2014, he reported he has no interest or energy and feels depressed  but it was noted he was working, and he recently spent Thanksgiving with family.  A December 2018 depressive screening was negative.  In May 2019, he denied having depression or anxiety. 

Throughout this period, the Veteran's cognitive abilities, including capacity for abstraction, memory, and judgment were grossly intact, his speech and communication were appropriate, and grooming and hygiene were appropriate.  There was no evidence of panic, paranoia, obsessional rituals, or hypervigilance. Although the Veteran described some disturbances in motivation and mood, such symptoms varied from day to day depending on his physical health symptoms.  For example, the 2013 examiner noted that "when Veteran experiences more notable depressive symptoms, such as persistent down mood, anhedonia, amotivation and sleep disturbance it is challenging for Veteran to routinely work; however, with medication Veteran's symptoms are controlled and he is able to have work and maintain meaningful relationships." 

In considering the appropriate disability ratings, the Board considered the Veteran's statements that his psychiatric disability is worse than the rating he currently receives.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive, or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  As such, based on the totality of the evidence, the Board finds that a higher rating of 30 percent, but no higher, for the depressive disorder prior to November 2019 is warranted. 

However, the Board finds that the Veteran's depression disability has not risen to the level of severity as to warrant a disability rating higher than 30 percent for this period as the Veteran's depression has not been shown to be manifested by occupational and social impairment with reduced reliability and productivity.  He specifically described himself as doing well at work and with family despite his symptoms.  He has not been shown to experience symptoms such as circumstantial, circumlocutory, or stereotyped speech, difficulty in understanding complex commands, any impairment of short- and long-term memory, consistently impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective work and social relationships.  He consistently denied having suicidal or homicidal ideation or hallucinations of any kind.  Although he reported being isolated and having marital problems during the 2017 Board testimony, he did not provide any specifics as to how his depression had worsened; further, this was considered as part of the grant to 30 percent.  Regardless, the Veteran has shown to be able to work a full-time job throughout this appeal period while managing others at work; therefore, the preponderance of the evidence does not purport that a rating higher than 30 percent prior to November 2019 is warranted. 

As such, the Board concludes that the depression symptomatology more nearly approximated the criteria for a schedular rating of 30 percent, but no higher, prior to November 5, 2019. 

Since November 5, 2019

Based on the evidence of record, the Board concludes that a disability rating in excess of 70 percent is not warranted at any point during the appeal period. 

Subsequent to the 2019 Board remand, the RO was requested to schedule the Veteran for a VA examination to determine the current severity and nature of the Veteran's depression based on his reports that his condition had worsened.  

On November 5, 2019, the Veteran underwent a VA examination, where the examiner confirmed the diagnosis of recurrent major depressive disorder, but opined it was severe.  The examiner opined that he had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  His symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining work and social relationships, and inability to establish and maintain effective relationships.  The examiner noted that the Veteran appeared neat and clean, and he was logical in thought and present to here and now.  He also noted the Veteran to be open and cooperative.

Thereafter, in November 2020, the Veteran underwent another VA examination, where the examiner opined his depression caused 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.  The symptoms included depression, anxiety, chronic sleep impairment, and a flattened affect.

Although the 2020 examination report shows improvement, the Board will give the benefit of the doubt in favor of the Veteran as to the 70 percent rating he was granted in the 2019 rating decision.  As such, a rating in excess of 70 percent is not warranted. 

For example, throughout the period on appeal, the Board finds that there have been few reports of the symptoms listed in the criteria for a 100 percent rating. The evidence, including the aforementioned 2013 and 2016 VA examinations, as well as the 2019 and 2020 VA examination and VA treatment records, primarily indicates that the Veteran's speech tone and rate have been clear or within normal limits, his thought process and content logical and goal-oriented, and his judgment, insight, and impulse control unimpaired.  At no time in the VA examinations and treatment records has the Veteran been shown to exhibit disorientation to time or place or memory loss for names of close relatives, own occupation, or own name.  Moreover, the Veteran has explicitly denied having suicidal ideation, and denied current ideation or any plans or intent to harm himself or others.  Finally, the Veteran has not demonstrated persistent delusions or hallucinations or grossly inappropriate behavior in such records. 

Additionally, VA examinations and treatment records show that the Veteran has been found to be able to perform all activities of daily living, maintain minimum personal hygiene, and handle his financial affairs.  At no time in these records has the Veteran reported or the medical evidence demonstrated the other severe symptoms listed in the rating criteria, such as obsessional rituals which interfere with routine activities, impaired impulse control, spatial disorientation, or speech that is intermittently illogical, obscure, or irrelevant.  Finally, although the RO granted TDIU since August 12, 2011, the Board notes this was granted in error.  The request for a TDIU was for August 11, 2011 to approximately September 2012 when the Veteran was unemployed  per the Veteran himself in multiple treatment records and examinations, he has maintained full-time employment since.  As such, the Board notes significant the fact that the Veteran has not reported that he is totally impaired due to his depression symptoms  in fact, he has worked in human resources and managed others.  Finally, the Board finds that there is insufficient evidence to show that a 100 percent rating is warranted as total overall social impairment has not been demonstrated.  Mauerhan, 16 Vet. App. at 436. 

Given the evidence above, the Board concludes that the Veteran's symptoms do not more nearly approximate a 100 percent schedular disability rating and have not at any time during the appellate period.  See 38 C.F.R. §§ 4.7, 4.21, 4.73, DC 9434.  Competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated.  The copious amounts of contemporaneous VA treatment records and the VA examinations of record agree as to the severity of the Veteran's depression disability. 

As such, the Board concludes that the depression symptomatology did not approximate the criteria for a schedular rating higher than 70 percent at any point on appeal.  In sum, a higher rating of 30 percent, but no higher, prior to November 5, 2019 is granted, but a rating in excess of 70 percent thereafter is denied. 

2. Back disability

The Veteran argues that his back disability should have a higher evaluation than as currently awarded.  He is in receipt of a 40 percent evaluation since June 25, 2010. 

The Veteran's service-connected back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, under DC 5237, for lumbosacral strain.  The pertinent regulations for rating a back disability were provided to the Veteran in prior Statements of the Case and will not be repeated.

Upon review of the evidence of record, the Board finds a rating in excess of 40 percent is not warranted. The required manifestations for an evaluation greater than 40 percent are not present.  VA treatment records and VA examinations do not show that the Veteran's spine has been found to be ankylosed, or that he has experienced incapacitating episodes of IVDS having a total duration of at least six weeks with prescribed bed rest from a physician at any time during the period under appeal. While he may voluntarily restrict his physical activities or rest in bed during periods of increased symptoms, VA's rating schedule defines an incapacitating episode as prescribed bed rest from a physician (emphasis added).

Further, as under Note (1), the General Rating Formula directs that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC.  However, the Veteran is already receiving separate evaluations to compensate him for his lower peripheral neuropathy with separate bilateral ratings for both the sciatic nerve and femoral nerve as secondary to his back disability in the right lower extremity, and for the sciatic nerve in the left lower extremity.  As such, he is already separately compensated for the burning, tingling pain radiating into his legs.  He did not appeal the right lower extremity ratings, so they are not before the Board; the left lower extremity ratings are discussed immediately below. 

Accordingly, as the preponderance of the medical evidence supports an evaluation of 40 percent, but no higher, the claim for an evaluation in excess of 40 percent for the back disability is denied.

3. Left lower extremity neuropathy

The Veteran's service-connected left lower extremity sciatica is evaluated at 10 percent disabling prior to November 4, 2019 and 20 percent disabling thereafter under 38 C.F.R. § 4.124a, DC 8520. 

Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a.  Paralysis of the sciatic nerve, such as that caused by sciatica, is rated under DC 8520.  Under DC 8520, a maximum schedular rating of 80 percent is awarded for complete paralysis of the sciatic nerve.  With complete paralysis, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  When there is incomplete paralysis, a 60 percent rating is in order for severe disability with marked muscular atrophy.  Moderately severe incomplete paralysis warrants a 40 percent evaluation, and moderate incomplete paralysis warrants a 20 percent rating.  Finally, mild incomplete paralysis warrants a 10 percent rating. See 38 C.F.R. § 4.124a, DC 8520.

The words "mild," "moderate," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  See 38 C.F.R. § 4.6.  The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. 

Turning to the evidence of record, the report of the November 2012 VA examination notes the Veteran's left lower extremity sciatica disability.  The Veteran stated he has had some increase in buttock pain with pain radiating to the lower leg. He reported increased numbness in left foot, but no weakness and no bowel or bladder changes.  The examiner opined that the Veteran had mild intermittent pain, paresthesias and numbness in the left lower extremity.  His muscle strength testing was normal, and he did not have muscle atrophy.  His reflex testing revealed hypoactive knees (for which he is separately connected) and sensory testing was normal in the left lower extremities with decreased sensation in the foot/toes only. The examiner marked that he had incomplete paralysis of the sciatic nerve that was mild in severity.

Based on the above, the Board finds that entitlement to an initial rating greater than 10 percent, prior to November 4, 2019, for his left lower extremity sciatica disability is not warranted.  The competent medical evidence of record shows that the Veteran's left lower extremity sciatica was manifested by incomplete paralysis, that was mild in severity.  While the Veteran complained of pain radiating to the lower extremities, sensory and motor examinations were consistently normal.  The Board finds that such impairment is not of a degree approximating moderate incomplete paralysis. 

The Board also finds that entitlement to a rating greater than 20 percent from November 4, 2019, for his left lower extremity sciatica is not warranted. 

For the period since November 4, 2019, the competent medical evidence of record shows that the Veteran's left lower extremity sciatica was manifested by incomplete paralysis, which has been moderate in severity.  Specifically, the competent medical evidence indicates that the symptoms associated with his left extremity sciatica was noted to be, at most, moderate in severity

Specifically, subsequent to the 2019 Board remand, another examination was requested to determine the current severity and nature as the Veteran reported his radiation and pain to his lower extremities had worsened.  He was provided an examination by a VA examiner in January 2020.  The examiner confirmed peripheral neuropathy sciatic nerve, left lower extremity, due to the back disability (as well as the right lower extremity  as noted above, the Veteran has separate 10 percent ratings for his right sciatic and femoral nerves).  The Veteran reported that when the condition began, the symptoms were pain and numbness.  The current symptoms are pain and numbness affecting both legs with difficulty walking and he cannot put a blanket on his feet due to the tingling, sharp, shooting pain.  The examiner marked that the Veteran's right lower and left lower extremity intermittent pain is severe; paresthesias is moderate; and numbness is moderate.  He had normal muscle strength testing, normal reflex in all except for the right and left ankles were hypoactive, and no muscle atrophy. He had decreased sensation in the upper right thigh, right thigh/knee, and bilateral lower leg/ankles and foot/toes; and gait was antalgic due to lower back pain with radiculopathy.  Finally, the examiner marked that the sciatic nerves in the left lower extremities were noted to be incomplete paralysis that is moderate in severity.

While the Veteran asserts his pain has worsened, he was granted a higher rating for the left lower extremity as well as separately rated at 10 percent for the right sciatica lower extremity and 10 percent for right lower femoral extremity pain.  Further, the 2020 examiner clarified that the Veteran's impairment due to his bilateral lower extremity sciatica more closely approximated incomplete paralysis, which was moderate in severity.  The Board affords the 2020 VA examiner's opinion greater probative weight, as it is consistent with the medical records which show symptoms, which at worst, were moderate in severity. 

The Board also finds that the evidence does not more nearly approximate moderately severe or severe incomplete paralysis of the Veteran's left lower extremity and the evidence was not approximately evenly balanced on this point at any time during the appeal period.  Although there were abnormal findings of decreased sensations, as well as reports of numbness and pain, there was no evidence of muscle atrophy or foot drop.  Accordingly, it cannot be said that the nature and severity of the abnormalities more nearly approximated moderately severe or severe incomplete paralysis or that the evidence is in relative equipoise on this point.

For the foregoing reasons, the preponderance of the evidence is against an initial rating higher than 10 percent prior to December 31, 2019 and a rating higher than 20 percent thereafter for the Veteran's left lower extremity sciatica disability. The benefit of the doubt doctrine is therefore not for application and the claim for higher ratings for this disability must be denied.

4. Bilateral knees

As for the Veteran's bilateral knees, he is challenging the ratings assigned for his knee disabilities.  For clarity, the Veteran's left knee disability, rated as instability under DC 5010-5237, is rated at 20 percent since April 2006.  The right knee, rated under DC 5010-5260 for right knee osteoarthritis, is rated 10 percent since April 2006.

In addition to the above regulations, disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 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).  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  See 38 C.F.R. § 4.40.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45.

Determination of whether the application of sections 4.40 and 4.45 entitles the Veteran to an increased rating requires factual findings as to the extent to which the Veteran's pain and weakness cause additional disability beyond that reflected in the measured limitation of motion.  DeLuca, 8 Vet. App. 202. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  See 38 C.F.R. § 4.40; see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

In addition, the Board is not required to rely on the characterizations by the AOJ, as one diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology; though any change in a diagnostic code by a VA adjudicator must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised so long as the action does not result in the reduction of compensation.  See 38 C.F.R. §§ 3.951, 3.957.  The Board further determines that remanding for completion of this task would merely waste resources and further delay resolution of the appeal.  Soyini v. Derwinski, 1 Vet. App. 540 (1991).  As such, the Board still has the ability to conduct a de novo review of the record and consider all potentially applicable diagnostic codes, even though the AOJ has not. Therefore, the Board may rate the Veteran's service-connected knee disability however the facts may lead.  Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case").  In reviewing the claims, the Board should consider whether another rating code is "more appropriate" than the one used by the AOJ.  Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).  Here, as discussed in further detail below, after a review of the evidence of record, the Board has considered any alternative diagnostic codes that may appropriately reflect the nature of the Veteran's knee conditions.  

Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5055 (knee replacement), DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum).

Further, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021.  See 85 Fed. Reg. 230.  These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the claimant will apply, to the extent permitted by any stated effective date in the amendment in question.  See 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.  See 38 U.S.C. § 5110.  Therefore, the Board will consider a claimant's claim 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 claimant will be applied. The Board is allowed to consider these changes, although the RO has not yet done so. 38 CFR 20.904(d)(2) (remand to the AOJ is not necessary for consideration of law not already considered by the AOJ, including regulations).  

Prior to the regulatory change, DC 5257 provides that an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability.  An evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe.

As of February 7, 2021, under the amended criteria, DC 5257 provides a 10 percent rating for recurrent subluxation or lateral instability for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation).  A 20 percent rating for one of the following: (a) sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation); 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), or a walker) or bracing for ambulation).  A 30 percent rating 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.

Diagnostic Code 5257 also now provides for patellar instability, with a 10 percent rating 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).  A 20 percent rating 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.  And a 30 percent rating 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 walker. 

Diagnostic Code 5260 pertains to limited flexion of the knee. Flexion limited to 60 degrees is noncompensable.  A 10 percent rating applies when flexion is limited to 45 degrees.  A 20 percent rating applies when flexion is limited to 30 degrees.  A 30 percent rating applies when flexion is limited to 15 degrees.  There are no new changes to this diagnostic code. 

Diagnostic Code 5259 provides a maximum 10 percent rating for symptomatic removal of semilunar cartilage. DC 5258 provides a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. There are no new changes for this diagnostic code. 

Also, separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee.  Specifically, where a veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same knee, the limitations must be rated separately to adequately compensate for functional loss associated with the disability, and separate ratings may also be assigned for limitation of flexion, extension, instability, and a meniscal disability of the same knee, provided that a separate rating must be based upon additional disability.  Lyles v. Shulkin, 29 Vet. App. 107 (2017). Normal range of motion for the knee is 0 degrees extension to 140 degrees of flexion. 

Additionally, the Board notes that in Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016) the Court held that to be adequate, a VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Here, VA examinations and medical evidence prior to this Court ruling included evaluations of the opposite joint (although it is also a service-connected disability), but did not include evaluations of the joint on passive motion, or on weight-bearing and nonweight-bearing.  Although, according to Correia, these examinations are therefore not adequate, it is not possible to provide the Veteran with an updated examination which could provide adequate joint testing that would be applicable to the claim on appeal for the entire period on appeal.  Any examination done now would not provide information as to the severity of the condition prior to 2017.  Consequently, the Board must provide ratings based on the available medical and lay evidence of record.

Upon review of the evidence of record, the Board finds the following:

	The Veteran's left knee disability, currently rated as 20 percent for instability under DC 5257, is continued;

	For the entire period on appeal, the Veteran's left knee disability warrants a separate 10 percent rating for limitation of flexion with pain;

	For the entire period on appeal, the Veteran's right knee disability was not more than 10 percent disabling due to painful limitation of motion;

	For the entire period on appeal, the Veteran's right knee disability warrants a separate 10 percent instability rating as he has had slight instability of the right knee; and

	From May 17, 2017 to present, the Veteran's right knee disability warrants a separate 10 percent disability rating for limited extension.

The reasons for each of these determinations is discussed below.

First, as noted above, for the entire period on appeal, the Veteran's bilateral knee disability warrant separate 10 percent disabling ratings due to painful limitation of motion.  The probative evidence includes VA examination reports November 2010, November 2012, and November 2019.  The Veteran's VA treatment records were also considered.

As to limited extension, a separate rating requires evidence of extension limited to at least 10 degrees. This has not been shown by the record as to the left knee; but beginning May 17, 2017, extension in the right knee was limited to 10 degrees, which warrants a 10 percent rating.  See 38 C.F.R. § 4.71a, DC 5261.

First, in the 2010 VA examination, he reported weakness, stiffness, giving way, lack of endurance, locking, fatigability and pain.  He indicated he did not experience swelling, heat, redness, deformity, tenderness, drainage, effusion, subluxation and dislocation.  He reported flare-ups that caused severe pain, as well as additional functional impairment described as inability to walk comfortably, locking of the knee, inability to rest and limitation of motion of the joint which is described as locking of the knee.  He also reported difficulty with standing/walking and had an inability to stand for long periods of time, walking long distances becomes difficult, climbing stairs, exercises, driving long distances and lifting.  Examination of both knees revealed locking, pain and crepitus but no genu recurvatum and no ankylosis.  Right knee range of motion was limited to 90 degrees with pain and left knee range of motion was limited to 60 degrees with pain.  The anterior and posterior cruciate ligaments stability test of the left knee is abnormal with slight instability. The medial and lateral collateral ligaments stability test of the left knee is abnormal with slight instability.

In the November 2012 examination, it was noted that he was receiving treatment at VA medical centers, and he had stiffness of bilateral knees; the pain was noted to be dull to sharp and popping and clicking.  Range of motion testing revealed right knee flexion to 90 degrees; left knee flexion was limited to 70 degrees; extension was noted as normal on both knees.  The examiner also noted that he had less movement than usual with tenderness or pain to palpation.  Joint stability testing was noted as normal with no subluxation; but it was also noted he wore knee braces. 

The 2019 examination report showed the Veteran reported constant pain in the knees and lower back, and that the pain gets worse with prolonged standing, walking, and sitting, and with heavy lifting and frequent bending.  He reported occasional swelling of the knees.  He reported occasional numbness and tingling in the legs.  He also stated his flare-ups include pain, stiffness, and weakness in the knees.  Range of motion testing revealed right knee and left knee flexion limited to 125 degrees.  The examiner opined that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time.  Flare-ups would also further limit flexion to 115 degrees.  The examiner also noted that both knees have instability of station, disturbance of locomotion, and interference with standing.  Muscle strength was normal, no muscle atrophy, no ankylosis, and normal stability testing.  However, the examiner also marked that there was no history of effusion which is clearly erroneous as to the right knee.  It was also noted that the Veteran regularly uses knee braces and canes.

His VA treatment records also show symptoms warranting a rating of 10 percent but no higher for bilateral knee limitation of flexion.  For example, a July 2010 bilateral knee report noted he was prescribed bilateral neoprene knee sleeves and that he had intermittent instability in both knees.  July 2010 physical therapy records noted the Veteran's chronic knee pain and that he currently has pain after ascending stairs, strenuous activity, and that his knee gives way or catches. It was also noted that he wears a knee brace that he stated: "gives him support...in the knees."  In March 2017, he reported worsened knee pain.  An examination revealed the left knee was without swelling or laxity, but the right knee had swelling especially medial and posterior; decreased ROM of knee flexion with pain and swelling.  April 2017 VA medical records noted the right knee had severe pain with large effusion.  The examiner noted he had swelling, locking/catching, giving out, weakness.  ROM testing for flexion on right was 115/120 and left was 135.  Bilateral knee sleeves were ordered as well as physical therapy.  The plan for physical therapy was to increases ROM and increase strength and balance.  He received injections in the knees.   In May 2017 physical therapy, he reported worse right knee pain than the left and that the pain is sharp and deep.  ROM in the right was 110 flexion and 10 extension with pain.  Muscle testing in the right was reduced and he had tenderness.  Instability testing was noted as maybe as there was pain during the MCL test.  The impression from the X-ray findings from March 2017 was mild osteoarthritis in both knees and moderate right knee suprapatellar effusion.  In June 2019, he reported worsened right knee pain after bending down to pick something up from under the bed and developed pain and effusion  he also stated the knee locks and buckles at times.  He described the pain as sharp/dull and rated the severity as 9/10 and is worse with walking and is improved with rest and wearing a brace.  August 2019 VA medical record notes that in July 2017, he was ordered bilateral knee hyalogens, and it was also noted that the right knee flares up with edema and locking.  He was prescribed a Velcro brace.   Further, a March 2011 private medical examination noted weakness in the bilateral knees and that he had chronic strain of medial collateral ligaments of the bilateral knees.

However, while the Veteran clearly experienced pain and functional loss, the Board cannot find that it approximated the level of severity as described by the next higher rating with flexion limited to 45 degrees and/or extension limited to 10 degrees.  On each of the VA examinations, repetitive motion did not cause any additional loss of motion.  While he has reported severe pain at times, the additional loss of motion caused during these episodes has not been quantified.  The Board thus finds that pain and functional loss has already been considered in awarding the current ratings.  The 10 percent ratings contemplated some limitations in flexion for both knees, that were not otherwise compensable, painful motion, and some functional impairments due to that pain.

As such, the Veteran's right knee disability and left knee disability based on painful motion of flexion should both have separate 10 percent ratings under DC 5260.  This limitation of flexion is consistent with the criteria for a noncompensable disability rating.  Therefore, a rating in excess of 10 percent for limitation of flexion is not warranted at any point during the period on appeal.  The Board further finds that the 10 percent ratings under DC 5260 takes into account the Veteran's competent lay reports of pain, weakness, tenderness, and flare-ups, as well as the functional impact of difficulty walking and standing for extended periods due to pain and weakness.  

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  In Lyles, the Court held that the evaluation of a knee disability under Diagnostic Codes 5257 or 5261 or both did not, as a matter of law, preclude a separate evaluation of another disability of the same knee.  The Court explained that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.  The Court held that where a certain manifestation of a disability has not been compensated via an assigned evaluation under a particular DC, evaluation of that manifestation under another DC would not constitute pyramiding.

First, as noted above, the VA medical records revealed worsening limitation of motion in extension.  Specifically, on May 17, 2017 during physical therapy, his range of motion testing revealed limitation of extension to 10 degrees in the right knee.  This meets the criteria for a 10 percent rating under DC 5261, which is separate and distinct from the limitation of flexion in the right knee.  However, the Veteran's right knee extension prior to May 2017 was consistently marked as normal, or no worse than limited to 5 degrees, which is a noncompensable limitation under DC 5261.  The 10-degree limitation was not present in the Veteran's medical examinations and records, though it is consistent with his reports or worsening (see 2017 Board hearing and VA medical records); as such, the preponderance of the evidence is against a 10 percent rating for right knee limitation of extension prior to May 17, 2017. 

Further, the Board acknowledges that the Veteran is competent to report the symptoms associated with his service-connected left knee disability and right knee disability and the extent of his impairment during flare ups of symptoms and following repetitive use, and the Board has no reason to challenge the credibility of his contentions.  Jandreau, 492 F.3d 1372, 1377; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  Regardless of the competent and credible reports of flare ups, pain, and other functional impairments, and despite the fact that painful motion was documented, the evidence nonetheless supports the conclusion that the symptoms for the bilateral knees most closely approximated the criteria for at most separate 10 percent ratings for limitation of knee flexion under DC 5260 during the entire claim period; and a separate 10 percent rating for limitation of right knee extension beginning May 17, 2017 under DC 5261. Specifically, the above evidence reflects that the flare ups and other functional impairments were not so severe, frequent and/or prolonged to warrant the next higher percent ratings at any time during the claim period.  A preponderance of the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's knee symptoms were not shown to have been so disabling to actually or effectively result in limitation of knee flexion more nearly approximating 30 degrees or limitation of knee extension more nearly approximating 10 degrees prior to May 2017 or 15 degrees thereafter, which are the requirements for a 20 percent rating for limitation of knee flexion under DC 5260 and a compensable (10 percent) rating for 10 degrees or 20 percent rating for 15 degrees for limitation of knee extension under DC 5261, respectively.

Finally, the Board notes that the evidence indicates that there was instability in both the left knee and right knee for the entire period on appeal.  The Board continues the 20 percent rating for left knee instability and finds a separate 10 percent rating is warranted for right knee instability under DC 5257  separate and distinct from limitation of flexion and extension under DC 5260 and 5261. 

However, at no time during the appellate time period has the Veteran's left knee instability resulted in greater moderate impairment and at no point has the right knee instability resulted in greater than slight impairment.  The Board reaches this conclusion based on the objective testing results of record.  The Board has considered the Veteran's lay reports of falls due to the knees giving out and that he has regularly worn knee braces and finds that the ratings being granted herein contemplate such symptoms.  As such, a 10 percent rating, but no higher, for the right knee and 20 percent rating, but no higher, for the left knee is warranted.

Specifically, the Board based these findings on the examination reports indicating that the Veteran's left knee instability was mild to moderate in severity, the Veteran's consistent reports of experiencing BOTH left and right knee instability ("giving way" and buckling and feeling unstable), his regular and constant use of knee braces and canes due to limited mobility and falls, his need for knee braces in order to keep him stable, and his consistent reports of his knees locking up, popping and giving out.  

The Board notes that the examination reports noted negative stability and subluxation testing.  That notwithstanding, the Board acknowledges that the Veteran is competent to report knee instability as this is within the realm of his personal perception, and as such, the Board finds the Veteran's lay statements to be both competent and credible.  English v. Wilkie, 30 Vet. App. 347 (2018) (suggesting that lay evidence of knee instability is generally competent).  The Board is cognizant that objective medical evidence is not categorically more probative than lay evidence when it comes to determining the degree of knee instability the Veteran has experienced during the appellate period.  English, supra.  

As such, the evidence indicates that the Veteran's bilateral knee instability has been reported and shown prior to and for the entire period on appeal; further, as noted in the 2010 examination, the examiner noted the left knee instability during testing, and the 2019 examiner noted both knees had instability of station.  Further, the medical records as discussed above clearly show that his right knee had instability which more nearly approximated mild severity.  

However, any assertions that more severe right knee and left knee instability than as currently rated are contradicted by the medical evidence.  This is not an instance where the Board is negating the probative value of the Veteran's lay statements simply because they are unaccompanied by supporting contemporaneous medical evidence, which would be in contravention of Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  To the contrary, the medical evidence of record, to include all VA examinations, are inconsistent with and contradict the severity of the Veteran's knee instability as presented in his lay statements issued during the course of these proceedings. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  DC 5257 expressly refers to lateral instability, a specific type of joint instability demonstrated by clinical test for ligament laxity, such as Lachman's and drawer tests.  As discussed above, the 2010, 2012, and 2019 examiners marked "no" to history of instability or recurrent subluxation after the Veteran underwent instability and laxity testing.  Although the Veteran is competent to report his symptoms, the qualified medical evidence indicates that three different VA examinations indicated that after testing, the Veteran's test results did not reveal a showing of instability or subluxation of the bilateral knees.  Accordingly, these statements are afforded less evidentiary weight in this determination.  

As such, the Board concludes that the 20 percent rating, but no higher, for left knee instability is continued under DC 5257, and a separate 10 percent rating, but no higher, for right knee instability under DC 52517 is warranted.  The Board notes that the benefit of the doubt has been applied, where applicable, and acknowledges that the Veteran believes his bilateral knee instability to be of greater severity.  However, the Board finds that his statements are most supportive of the aforementioned ratings; and some of his reported symptoms were considered as part of the separate ratings for each knee as discussed above. 

The Board also considered the remaining diagnostic codes relating to the knee; however, they are not applicable to the Veteran's case. Upon review of the claims file, the record does not demonstrate evidence of ankylosis of the knee (DC 5256); dislocated cartilage (DC 5258 and DC 5259); impairment of the tibia and fibula (DC 5262); or genu recurvatum (DC 5263). As such, the Board finds that any higher and/or separate rating(s) for the left knee is/are not warranted under any of these Diagnostic Codes.

In summary, for the entire period on appeal, the Board finds that a rating of 10 percent (but no higher) for left knee limitation of flexion under DC 5260 and a separate 10 percent rating (but no higher) for right knee limitation of flexion under DC 5260 is warranted; and beginning May 17, 2017 (but no earlier) a separate 10 percent rating (but no higher) for limitation of extension under DC 5261 for the right knee is warranted.  In addition, the 20 percent rating (but no higher) for left knee instability under DC 5257 is continued, and a separate 10 percent rating (but no higher) for right knee instability under DC 5257 is warranted.

REASONS FOR REMAND

As noted above, most recently in 2019, the Board remanded, in part, the matter for service connection for sleep apnea for an addendum medical opinion.  The AOJ obtained medical opinions in November 2019 and November 2020. Regrettably, the Board finds that the record does not reflect substantial compliance with the Board's remand directives, and that a new VA examination and medical opinion are required.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA provides a medical opinion, it must be adequate). 

Specifically, the opinions obtained in November 2019 and November 2020 again failed to comply with the remand directives.  First, in the 2019 opinion, the examiner stated that "it is not possible to determine why the Veteran gained weight. The leading causes of obesity include diet, lack of activity/exercise, lifestyle, genetic, hormonal, medication etc."  The examiner stated it would be mere speculation to assume the weight gain was due to inactivity from his back disability.  The examiner further opined that "there are many disabled, bed bound or wheelchair bound patients that are thin and many active patients that are obese. Simply correlating obesity to the back condition is not based on objective evidence."  

The 2020 examiner stated that "obesity is a strong risk factor to sleep apnea" but then opined sleep apnea is less likely than not proximately due to or the result of any of the service-connected disabilities, but he did not provide a rationale or discussion as to the negative opinion.  He further opined that "there is correlation between pulmonary sleep condition[s] and psychiatric disability.  However, correlation does not equal causation.  According to VAMC records, the Veteran has history of obesity.  Obesity is a strongest risk factor to aggravating sleep apnea." The examiner then opined that the Veteran's sleep problems are subsumed by the depression rating.  

However, neither examiner in any way discussed whether the Veteran's obesity was the intermediate step between the combination of his service-connected depressive disorder, back disability, bilateral knee disability, and bilateral lower extremity disabilities to the sleep apnea, or whether the Veteran's sleep apnea was aggravated beyond its natural progression due to his service-connected disabilities by way of his obesity, but rather, that obesity is the strongest risk factor for sleep apnea without providing a rationale as whether but for the Veteran's service connected disabilities causing him to be unable to exercise which led to his obesity. 

Further, the 2019 examiner's supporting rationale that other individuals unable to exercise are not obese has no correlation to this particular Veteran and his medical history.  Again, while obesity in of itself is not a disability eligible for service connection (Marcelino v. Shulkin, 29 Vet. App. 155 (2018)), obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a).  As the Veteran is service-connected for his back disability, bilateral knees, depression, and bilateral lower extremities, and contends these conditions caused him to be unable to exercise and caused his weight gain, obesity could be an "intermediate step" between his service-connected conditions and his sleep apnea.   Here, the examiners' opinions are not adequate as they discuss circumstances that are not relevant to this particular Veteran, but do not provide reasoned opinions as to whether the Veteran's service-connected disabilities contributed to the Veteran's weight gain, and whether his sleep apnea would not have occurred but for the obesity.  

Finally, as for the 2020 examiner's opinion that any sleep problems are already rated under the service-connected depression is not adequate; the Veteran has a current diagnosis for sleep apnea, and an opinion was requested as to whether the symptoms for sleep apnea  separate from the sleep impairment due to depression  were proximately due to or aggravated by the depression, not whether they were "subsumed" by the rating criteria for depression. 

As such, unfortunately, although the Board regrets the delay, another remand is warranted.  The Board sincerely appreciates the Veteran's patience and apologizes for the further delay as VA works to fulfill its statutory obligation to assist him in obtaining information necessary to substantiate his claims for benefits.  

The matters are REMANDED for the following action:

1. Request a medical opinion concerning the Veteran's obesity.  The examiner must note his or her review of the complete claims file and should review this remand for a discussion as to why the prior opinion was inadequate.  

Then, the examiner should opine as to the following, with full supporting rationales:

Is it at least as likely as not that the service-connected disabilities (back, bilateral lower extremity peripheral neuropathy, bilateral knees and a psychiatric disorder) caused the Veteran to become obese?  

An opinion based on options and activities the Veteran could do or could have done for his weight gain/obesity is moot.  Rather, please specifically address the Veteran's contentions his service-connected disabilities caused him to be unable to exercise or even walk longer distances, which then led to his weight gain and eventually his current obesity. 

Specifically, the examiner must discuss and consider: 

	The VA outpatient records suggest a relationship between high BMI and pulmonary sleep disorders such as sleep apnea;

	November 2011 VA sleep clinic consult questionnaire (noting "yes" regarding high BMI and neck circumference);

	November 2010 and November 2012 VA examinations which noted the Veteran's various service-connected orthopedic disabilities, including his lumbar spine, right knee, and left knee disabilities, are well-documented, e.g., limitations on physically demanding activities such as walking, running, and exercising;

	January 2012 VA pulmonary sleep clinic note (noting signs and symptoms suggestive of OSA, and that provider advised the Veteran regarding the importance of weight loss and exercise); and

	The November 2019 examiner's opinion, that the leading causes of obesity include diet and lack of activity/exercise.

Rationale must be provided for the opinions proffered.  If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why.

2. The opinion requested above on obesity must be obtained prior to requesting the following opinions, as they will be based on that opinion.

3. Request an addendum medical opinion for the Veteran's sleep apnea.  The examiner must note his or her review of the complete claims file and should review this remand for a discussion as to why the prior opinion was inadequate.  

The examiner is also advised that the Veteran has a diagnosis for sleep apnea during the pendency of this appeal, and an opinion to the contrary will be deemed inadequate. 

Then, the examiner should opine as to the following, with full supporting rationales:

(a.) Is it at least as likely as not that the Veteran's sleep apnea is proximately due to his service-connected disabilities? 

(b.) Is it at least as likely as not that sleep apnea is aggravated beyond its natural progression by his service-connected disabilities?

The examiner should specifically cite to any evidence that supports this opinion and is advised that a "permanent" worsening or increase in severity of sleep apnea is NOT required to demonstrate "aggravation." Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence.

(c.) If and only if the opinion obtained on the Veteran's obesity indicates it is at least as likely as not that the service-connected disabilities caused the Veteran to become obese, then please opine as to whether that obesity was at least as likely as not a substantial factor in causing sleep apnea? 

(d.) If and only if the examiner concludes obesity related to the Veteran's service-connected disabilities was a substantial factor in causing sleep apnea, then please also opine as to whether it is at least as likely as not that the sleep apnea would NOT have occurred BUT FOR the obesity? 

Specifically, the examiner must discuss and consider:

	The November 2020 examiner's opinion that there is a "correlation between pulmonary sleep condition and psychiatric disability"; and

	The November 2020 VA examiner who stated "obesity is a strongest risk factor to aggravating sleep apnea."

It is not enough to state that a mental health disorder or back disability, knee disabilities, and bilateral lower extremity neuropathy cannot cause sleep apnea.  The examiner must consider that obesity may act as an "intermediate step" between service-connected disabilities and a current disability that may be service-connected on a secondary basis in the rationale. 

A conclusion such as the sleep problems are subsumed by the depression rating will not be adequate as the Veteran has a current diagnosis for sleep apnea and this must be considered as a separate disability from the Veteran's sleep impairment due to the service connected depressive disorder. 

Rationale must be provided for the opinions proffered.  If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G.Hoy, 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.