Citation Nr: 1736621	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  14-28 694	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent prior to January 26, 2007, in excess of 30 percent from January 26, 2007 to June 20, 2016, and in excess of 70 percent thereafter for depressive disorder not otherwise specified (NOS).  

2.  Entitlement to an initial disability rating in excess of 10 percent for medical meniscus degeneration of the left knee. 

3.  Entitlement to an initial disability rating in excess of 10 percent for medical meniscus degeneration of the right knee.  

4.  Entitlement to an initial disability rating in excess of 10 percent for left shoulder acromioclavicular joint degenerative joint disease and tendinitis.  





ATTORNEY FOR THE BOARD

N.Yeh, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from August 1981 to August 1984, and from November 2005 to December 2006.  He also had additional service in the Army Reserve.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico.  

With regards to the Veteran's service connection claim for sleep apnea, the Veteran was granted service connection at 50 percent disabling by a March 2017 rating decision.  As of date, the Veteran has not filed a Notice of Disagreement in response.  Thus, the issue of sleep apnea is not before the Board.  The matters relating to increased ratings have been previously remanded by the Board in November 2016 for further development and are now back before the Board for appellate consideration.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACTS

1.  The Veteran's depressive disorder was manifested by occupational and social impairment due to mild or transient symptoms such as anxiety prior to January 26, 2007.  

2.  From January 26, 2007 to June 20, 2016, the Veteran's depressive disorder was manifested by occupational and social impairment with occasional decrease in work efficiency due to symptoms such as depressed mood, anxiety, and chronic sleep impairment.  

3.  From June 20, 2016, the Veteran's depressive disorder is manifested by occupational and social impairment with deficiency in most areas due to symptoms such as near-continuous panic or depression, difficulty in maintaining personal hygiene, anxiety, depressed mood, and chronic sleep impairment.  

4.  The Veteran's right knee instability is manifested by no more than slight instability. 

5.  The Veteran's left knee instability is manifested by no more than slight instability. 

6.  The Veteran's right knee medial meniscus degeneration is manifested by frequent episodes of locking, pain and effusion, but not by limitation of extension or by limitation of flexion to 15 degrees or less.  

7.  The Veteran's left knee medial meniscus degeneration is manifested by frequent episodes of locking, pain, and effusion, but not by limitation of extension or by limitation of flexion to 15 degrees or less.  

8.  The Veteran's service connected left shoulder is not manifested by limitation of motion of the arm midway between side and shoulder level, ankylosis, fibrous union or nonunion of the humerus, loss of head of the humerus, or frequent episodes of dislocation.  


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 10 percent for depressive disorder prior to January 26, 2006 have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9434 (2016).

2.  The criteria for an initial rating in excess of 30 percent for depressive disorder .  from January 26, 2007 to June 20, 2016 have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9434 (2016).

3.  The criteria for an initial rating in excess of 70 percent for depressive disorder from June 20, 2016 have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9434 (2016).

4.  The criteria for a rating in excess of 10 percent for instability of the right knee have not been met.  38 U.S.C.A. 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.321, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71 (a), Diagnostic Code 5257 (2016).  

5.  The criteria for a rating in excess of 10 percent for instability of the left knee have not been met.  38 U.S.C.A. 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.321, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71 (a), Diagnostic Code 5257 (2016).  

6.  The criteria for a 20 percent rating for medial meniscus degeneration of the right knee have been met.  38 U.S.C.A. 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.321, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71 (a), Diagnostic Code 5258, 5260, 5261 (2016).   

7.  The criteria for a 20 percent rating for medial meniscus degeneration of the left knee have been met.  38 U.S.C.A. 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.321, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71 (a), Diagnostic Code 5258, 5260, 5261 (2016).
8.  The criteria establishing an evaluation in excess of 20 percent for the Veteran's left shoulder disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5200-5203 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist 

The Veteran is challenging the evaluation assigned in connection with the grant of service connection for a mood disorder, bilateral knee condition, and a left shoulder disability.  Where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated, and there is no need to provide additional § 5103 notice or prejudice from absent notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); VAOPGCPREC 8-2003 (Dec. 22, 2003). 

The duty to assist the Veteran has been satisfied in this case.  The Veteran's service treatment records as well as all identified and available post-service medical records, as well as social security administration records are in the claims file.  The Veteran has not identified any available, outstanding records that are relevant to the claims decided herein.  The Veteran was afforded VA examinations in January 2007, October 2010, June 2016 and December 2016.  The Board finds that the VA examination reports are adequate to decide the case because it is predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran.  Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined in December 2016.  See 38 C.F.R. § 3.327(a) (2016).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995).  

II.  Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2016).  The 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 military 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.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2016).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2016).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).
Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

Lay statements, such as those made by the Veteran, are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995).  However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).  

a.  Depressive Disorder 

Under the Diagnostic code 9411, a 10 percent disability rating is assigned where there is 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 continuous medication.  A 30 percent disability rating is assigned where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  

A 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty understanding complex commands, impairment of short and long term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent disability rating is assigned where there is 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; intermittently illogical, obscure, or irrelevant speech; 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); and inability to establish and maintain effective relationships.  

A 100 percent disability rating is assigned where there is 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; and memory loss for names of close relatives, own occupation, or own name.

Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126 (a).  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment.  38 C.F.R. § 4.126 (b). 

Period Prior to January 26, 2007

In March 2006, the Veteran reported to a VA physician and stated that he was "doing better" and that he was getting better sleep.  While it appeared that the Veteran was struggling with alcohol consumption, he reported a reduction in alcohol intake in April.  The physician's report in April 2006 also indicated that the Veteran has been participating in weekly sessions with a counselor.  While the Veteran's condition appeared to be improving, he continues to struggle with persistent anxiety.  

In September 2006, a VA physician diagnosed the Veteran with a depressive disorder with symptoms including irritability, depression, anxiety, decreased energy, and a decreased interest in most activities that he found pleasurable before.  The physician noted that the Veteran was dressed in green fatigues and was cooperative and pleasant throughout the session.  The Veteran maintained good eye contact and was alert, awake, and was oriented to time and place.  While the Veteran was currently employed at a furniture store, he expressed to the physician that he felt useless, incapacitated, and shared his skepticism about returning to civilian life.  The physician reported that the Veteran's thought process was logical, coherent, and goal oriented.  There was no evidence of flight ideas or any looseness of associations.  There were no indications of perceptual disturbances, impulse control problems, suicidal and homicidal ideations, or paranoid thoughts.  The Veteran's reality testing was intact, and he showed appropriate social and test judgment.  Additionally, the physician did not find that the Veteran was a danger or a threat to himself or others.  

The Veteran was granted a 10 percent disability rating by a February 2008 rating decision.  Upon reviewing the medical report, the Board finds that the Veteran's symptoms more closely proximate a 10 percent disability rating.  The evidence as a whole suggests that there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks, with symptoms such as anxiety.  While anxiety is one of the characteristics under a 30 percent disability rating, the evidence does not show the majority of the symptoms such as inability to perform occupational tasks, chronic sleep impairment, suspiciousness, weekly panic attacks, and mild memory loss.  While the absence of these symptoms is not always determinative, the Veteran failed to show other symptoms of similar severity, frequency, and duration.  See Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  

Consideration has been given to assigning a higher disability evaluation.  However, the Veteran's symptoms described in the medical report do not indicate that the Veteran experiences symptoms associated with a 50 percent disability rating.  The medical report noted that the Veteran did not struggle with impaired judgment, impaired abstract thinking, disturbances of motivation.  There was no evidence of stereotyped speech, panic attacks, or difficulty understanding complex commands.  

The evidence does not show obsessional rituals that interfere with routine activities, thoughts of suicide or homicidal ideations, illogical or obscure speech, near-continuous panic or depression, impaired impulse control, spatial disorientation, a neglect of personal appearance, and an inability to establish and maintain effective relationships, symptoms also associated with a 70 percent rating or higher.  Finally, the Board also does not find that the Veteran is entitled to a 100 percent disability rating because the evidence does not indicate a total occupational and social impairment, due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations.  Furthermore, there is no indication in the record that the Veteran poses a threat or danger to himself or others.  Overall, his symptoms are generally more consistent with a 10 percent rating.  

Period from January 26, 2007 to June 20, 2016

The Veteran was afforded a VA psychiatric examination in January 2007.  There, the examiner noted that the Veteran was clean and neatly groomed.  His speech was clear, coherent, and spontaneous.  While the Veteran demonstrated a cooperative attitude towards the examiner, he also showed signs of suspicion.  He was oriented to time, place, and person, and was attentive throughout the session.  The Veteran appeared depressed but showed no indication of suicidal or homicidal thoughts or inappropriate behavior.  He did not suffer from panic attacks, obsessive ritualistic behavior, or hallucinations.  He continued to feel worthless and suffered from sleep impairment.  The Veteran showed no signs of suffering from hallucinations or delusions.  

The Veteran visited a VA treatment facility again in March 2010.  A social worker noted that the Veteran experienced feelings of sadness and loneliness.  However, the Veteran showed efforts in coping with such feelings by engaging in various hobbies.  The social worker also added that the Veteran was oriented to healthy living and showed an understanding of how his own negativity can impact others around him.  In November 2011, the Veteran underwent another psychiatric evaluation for his depressive disorder.  There, the examiner reported that the Veteran was clean, and appropriate dressed.  Similar to his previous visits, the Veteran was cooperative.  He was oriented to time, place, and person, and showed a full understanding of his symptoms.  The Veteran acknowledged that he was aware of the outcome of his behavior and admitted that his mood instability can limit his social functions with family and coworkers.  He continued to suffer from sleep impairment and stated that he often felt tired the next day.  The examiner reported that there were no indications of memory loss, homicidal or suicidal ideations, hallucinations or delusions, and panic attacks.  The Veteran demonstrated his ability to maintain personal hygiene and showed no issues with impulse control.  

In March 2011, the Veteran was granted a rating increase from 10 percent to 30 percent disabling.  However, it is the Veteran's contention that he be awarded a higher rating for this period.  The Board finds that the medical evidence is not consistent with a rating higher than 30 percent.  During this period, the Veteran has not shown evidence of panic attacks more than once a week, difficulty understanding complex commands, short term and long term memory loss, impairment judgment or abstract thinking as rated under a 50 percent rating.  

Under a 70 percent disability rating, the Board does not find that the Veteran has occupational and social impairment with deficiencies in most areas such as work and family relations.  The evidence does not indicate that the Veteran has expressed suicidal ideation, exercise poor judgment, engage in obsessional rituals that interfere with routine activities, with speech intermittently illogical, obscure or irrelevant, nor does he experience near-continuous panic or depression affecting the ability to function independently.  Furthermore, the Veteran has consistently denied auditory or visual hallucinations throughout the years.  The physicians and examiners have also consistently noted that the Veteran has maintained proper hygiene, that his thought process has been logical and coherent, and that he possessed fair judgment.  There has been no indication that the Veteran posed a danger to himself or others.  Thus, a 100 percent disability rating is also not warranted for this period.  

Period after June 20, 2016

The Veteran was afforded another VA examination in June 2016.  There, the examiner opined that the Veteran's depressive disorder was recurrent and ranged from moderate to severe.  Unlike what was reported in his previous medical examinations, the Veteran now struggles with near-continuous panic or depression affecting his ability to function appropriately and effectively.  He now faces difficulty in adapting to stressful circumstances and exhibits an intermittent inability to perform activities of daily living, including maintenance of personal hygiene.  He continues to struggle with anxiety, depressed mood, and chronic sleep impairment.  He stated to the examiner that he still has feelings of hopelessness and prefers to not discuss his problems with others.  In June 2016, the Veteran's disability rating for his depressive disorder was increased to 70 percent from the previous 30 percent.  

The Board finds that the Veteran's symptoms most proximate a 70 percent disability rating.  Based on the collective medical evidence, the Veteran did not display symptoms such as gross impairment in thought processes or communication, and gross inappropriate behavior.  There was no substantial evidence of persistent hallucinations or delusions.  There was no indication that the Veteran had expressed suicidal or homicidal ideations.  There was no evidence demonstrating that the Veteran poses a threat to himself or others.  While the Veteran might suffer from mild memory loss, it does not rise to the level of forgetting names of family members or disorientation of time and place.  Thus, a disability rating of 100 percent is not warranted.  

b.  Left and Right Knee Disability 

While the Board recognizes that the Veteran has been rated separately for the left and right knee under the same condition, both knees will be discussed together under this section due to the same symptomatology and the identical level of severity.  By way of history, the Veteran visited a VA treatment facility in October 2006 after complaints of bilateral knee pain which was exacerbated by prolonged standing or walking.  While a November 2005 MRI revealed normal findings, an orthopedics physician suspected early signs of degenerative joint disease after three phases of bone scan was obtained.  

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

Additionally, if the knee condition involves arthritis, the knee disability may be rated under provisions for evaluating arthritis. Arthritis due to trauma is rated as degenerative arthritis according to Diagnostic Code 5003.  Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is to be rated as follows: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5003.  

Upon evaluation of the evidence of record involving both knees, Diagnostic Code 5256 is not applicable because the evidence does not show ankylosis of the either knee.  While the Veteran's current disability of both knees involves the meniscus cartilage, Diagnostic Code 5259 is also not applicable since this Diagnostic Code allows for a 10 percent disability rating only if there is a removal of the semilunar cartilage that is symptomatic.  The Veteran in this case, has reported symptoms of locking, pain, and effusion.  He has not undergone removal of his knee cartilage.  
Diagnostic Code 5262 is not applicable for either knee because the Veteran's knees do not involve the impairment of the tibia or the fibula.  There is no evidence of nonunion or malunion of the knee or ankle.  Furthermore, without the showing of genu recuvatum (acquired, traumatic, with weakness and insecurity in weight-bearing), a disability rating under Diagnostic Code 5263 is not warranted.  

Left Knee Disability 

The Veteran was afforded a VA examination in January 2007.  His flexion and extension were recorded at 0 to 140 degrees with pain manifesting at full extension on both sides.  His January 2007 left knee MRI revealed a small joint effusion with mild intra-substance degeneration in medial meniscus.  The patella was in normal position and there were no evidence of meniscal or ligament tear.  

In October 2010, the Veteran underwent a VA examination for both his knees.  There, the Veteran reported pain, stiffness, and weakness.  The examiner noted decreased speed of joint motion with evidence of crepitation.  There were no indications of deformity, instability, incoordination, subluxation, or effusion.  The Veteran reported that the flare-ups of his joint disease in both knees were severe and affects him on a daily basis, especially when he stands, walks, climbs stairs, and squats.  His left knee flexion was recorded at 123 degrees, his extension was reported as 'normal.'  

In December 2016, the Veteran underwent another VA examination.  There, the Veteran continues to struggle with flare-ups on a daily basis, lasting for several hours.  His left knee flexion was recorded at 115 degrees, and his extension was recorded at 115 degrees.  Contrary to the October 2010 examination, the examiner found no evidence of crepitus.  After repetitive testing, the Veteran's left knee demonstrated no additional functional loss or range of motion.  A muscle strength test demonstrated reduced flexion strength, rating at 4 out of 5 and an extension strength rating at 3 out of 5.  There was no evidence of muscle atrophy or ankyslosis.  While there was no evidence of subluxation, the examiner found a slight medial instability (1+; 0-5 millimeters).  Unlike the Veteran's January 2007 MRI results, the examiner found that the Veteran suffers from meniscal dislocation, tear, frequent episodes of joint "locking," pain, and joint effusion.  

The Veteran was granted a 10 percent disability by a March 2017 rating decision for a slight knee instability under Diagnostic Code 5257.  The Board finds that the Veteran is not entitled to a higher evaluation under this Diagnostic Code since the evidence does not suggest a showing of symptoms of worsening recurrent subluxation or lateral instability.  Unlike in October 2010 where the Veteran demonstrated no instability or subluxation, the December 2016 reported slight medial instability.  But to be granted a higher rating greater than 10 percent, the Veteran's left knee must show a moderate level of instability or recurrent subluxation for a 20 percent rating, and a severe level of instability or recurrent subluxation for a 30 percent rating. 

The Veteran is not entitled to an additional compensable rating under Diagnostic Code 5261.  Under that Diagnostic Code, extension limited at 10 degrees warrants a 10 percent rating, extension limited at 15 degrees warrants a 20 percent rating, extension limited at 20 degrees warrants a 30 percent rating, extension limited at 30 degrees warrants a 40 percent rating, and extension limited at 45 degrees warrants a 50 percent rating.  Throughout the appeal period, the Veteran's extension had been noted as normal, and did not show a limitation of 10 degrees which would warrant the minimal 10 percent rating.  

The Board acknowledges that RO had previously evaluated the Veteran's left knee disability under Diagnostic Code 5260.  As a result, the Veteran was granted a 10 percent rating.  But as previously noted, Diagnostic Code 5260 pertains to limitation of flexion.  Flexion of the leg limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating.  In January 2007, the Veteran's flexion was recorded at 140 degrees, in October 2010, it was recorded at 123 degrees, and in December 2016, it was recorded at 115 degrees.  Based on the evidence, the Veteran's limitation of flexion does not meet the rating criteria set forth under Diagnostic Code 5260.  In this regard, the Board can consider whether an increased evaluation would be in order under other relevant diagnostic codes.  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).

The Board finds that his left knee is most appropriately rated under Diagnostic Code 5258, since the primary symptom pertains to his cartilage.  Under this code, a separate disability rating of 20 percent is warranted for meniscal dislocation, tear, and frequent episodes of joint locking, pain, and effusion.  While the Veteran did not suffer from a meniscal condition in the past, his June 2016 VA examination revealed the development and a diagnosis of a left knee meniscal tear.  The examiner noted that the Veteran now suffers from meniscal dislocation, tear, and frequent episodes of joint locking, joint pain, and joint effusion.  Such a diagnosis warrants a maximum rating of 20 percent disability rating under Diagnostic Code 5258.  

Right Knee Disability

The Veteran's January 2007 MRI of the right knee revealed a large joint effusion with mild intrasubstance degeneration medial meniscus without meniscus or ligament tear.  His right knee flexion was recorded at 140 degrees and his extension was noted as 'normal.'  At his October 2010 VA examination, similar to his left knee condition, the Veteran reported weakness, stiffness, and pain, especially when he walks, stands, climbs stairs, and squats.  The discomfort is felt on a daily basis and that the flare-ups are severe.  The examiner noted decreased speed of joint motion and found evidence of crepitation.  There was however, no evidence of deformity, instability, incoordination, subluxation, or effusion.  A range of motion test indicates that his right knee flexion was at 124 degrees and his extension was also reported as 'normal.'  

At his December 2016 VA examination, his right knee flexion was reported at 0 to 110 degrees, with an extension of 110 to 0 degrees.  There was evidence of pain with weight bearing and localized tenderness or pain on palpitation of the joint.  Unlike the previous examination, the examiner found no evidence of crepitus.  After repetitive testing, the Veteran's right knee demonstrated no additional functional loss or range of motion.  The examiner found no evidence of ankylosis or muscle atrophy.  A muscle strength test showed a score of 4 out of 5.  While the examiner found no evidence of subluxation, the Veteran demonstrated evidence of slight medial instability (1+; 0-5 millimeters).  Because of this, the Veteran was granted a 10 percent disability under Diagnostic Code 5257 by a March 2017 rating decision.  To warrant a 20 percent rating, the Veteran must show evidence of knee subluxation or instability at a moderate level.  A 30 percent disability rating would require showing of recurrent subluxation or instability at a severe level.  Without a showing of worsening level of severity, the Board cannot grant a higher rating greater than 10 percent disabling under this Diagnostic Code. 

Similar to his left knee, the Veteran was also previously granted a 10 percent disability rating for his right knee under Diagnostic Code 5260, which evaluates his flexion.  In January 2007, the Veteran's flexion was recorded at 140 degrees.  In October 2010, his flexion was recorded at 124 degrees, and in December 2016, it was at 110 degrees.  To warrant a compensable rating at 10 percent disabling, his flexion must be limited to only 45 degrees.  Since his flexion never measured below 110 degrees, a disability rating under Diagnostic Code 5260 is not appropriate.  

Accordingly, a disability rating under Diagnostic Code 5258 is more appropriate based on the level of disability and symptomatology exhibited by the Veteran.  Butts v. Brown, 5 Vet. App. at 532.  The Veteran's December 2016 VA examiner diagnosed the Veteran with a right knee meniscal tear.  Contrary to the Veteran's previous examinations, his December 2016 physical examination revealed meniscal dislocation, tear, and frequent episodes of joint locking, joint pain, and joint effusion.  Thus, a 20 percent disability rating is warranted under the Diagnostic code 5258.  

The Board has also considered whether or not the Veteran is entitled to another disability rating under Diagnostic Code 5261.  To be granted the minimal rating of 10 percent disabling, the Veteran's extension must be limited to 10 degrees.  An extension limited to 15 degrees will allow for a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, an extension limited at 30 degrees warrants a 40 percent rating, and extension limited at 45 degrees warrants a 50 percent rating.  However, the Veteran's VA examinations do not note an extension limited to the minimum requirement of 10 degrees.  Thus, a disability rating under Diagnostic Code 5261 is not warranted.  

c.  Left Shoulder Disability 

It is the Veteran's contention that he is entitled to a disability rating higher than 20 percent.  The diagnostic codes applicable to a rating of the shoulder are between Diagnostic Codes 5200-5203.  Ratings vary depending on whether the impairment is to the major or minor arm.  In this case, the Veteran is right hand dominant, so only the ratings for impairments to the "minor" arm are applicable and will be set forth below.  Normal shoulder flexion and abduction is from 0 to 180 degrees (90 degrees at shoulder level), and normal internal and external rotation is from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I.  Under DC 5200, which pertains to ankylosis of the scapulohumeral articulation, a 50 percent rating is warranted where there is unfavorable ankylosis with abduction limited to 25 degrees from the side.  38 C.F.R. § 4.71a, DC 5200 (2016).

Disability ratings for limitation of motion for the shoulder are provided for by DC 5201.  This Diagnostic code provides ratings for when arm motion is limited to 25 degrees from the side (40 percent), when limited to midway between side and shoulder level (30 percent), and when limited at shoulder level (20 percent). 38 C.F.R. § 4.71a, DC 5201.  

Under DC 5202, which pertains to impairment of the humerus, a 50 percent rating is warranted where there is fibrous union of the humerus; a 60 percent rating is warranted for nonunion of the humerus (false flail joint); and an 80 percent rating is warranted for loss of head of the humerus (flail shoulder).  38 C.F.R. § 4.71a, DC 5202.  

Under DC 5203 for impairment of the clavicle or scapula, a 10 percent rating is assigned for malunion or for nonunion without loose movement.  When there is nonunion with loose movement, a 20 percent rating is assigned.  A 20 percent rating is also assigned when there is dislocation of the clavicle or scapula.  
Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  The factors involved in evaluating and rating disabilities of the joints include weakness, fatigability, incoordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45.  The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14.  While the assignment of separate evaluations for separate and distinct symptomatology is not precluded, it is only permitted where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

By way of history, the Veteran's February 2006 MRI showed findings consistent with supraspinatus tendinosis and impingement syndrome secondary to acromioclavicular joint atrophy.  His October 2006 VA treatment record (post arthroscopy) reported persistent left shoulder pain, especially with overhead movements.  His extension was at 50 degrees; his flexion was at 180 degrees, with adduction at 180 degrees and abduction at 75 degrees.  In January 2007, the Veteran was afforded a VA examination.  There, his left shoulder flexion was recorded at 90 degrees, his abduction at 120 degrees, his external rotation at 60 degrees, and internal rotation at 60 degrees.  

A January 2007 MRI showed mild degenerative changes in the acromioclavicular joints.  The glenoid labra and the soft tissues around the shoulders were normal.  There was no evidence of a rotator cuff tear.  He was afforded another VA examination in October 2010, where his shoulder flexion was recorded at 130 degrees, abduction at 118 degrees, internal rotation at 60 degrees, and external rotation at 72 degrees.  The Veteran reported stiffness, weakness, pain, and daily severe flare-ups.  There was no evidence of ankylosis, subluxation, instability, deformity, or effusion.  

The Veteran was afforded another VA examination in December 2016.  He claimed pain and functional loss and impairment of the left shoulder.  Compared to his right shoulder, his left shoulder revealed abnormal range of motion.  His flexion was reported at 110 degrees, his abduction at 90 degrees, his external and internal rotation both at 70 degrees.  There was evidence of pain with weight bearing and localized tenderness or pain on palpation of the joint associated with the soft tissue.  There was no evidence of crepitus and additional functional loss or range motion after repetitive testing.  Compared to his right shoulder, his left shoulder showed a slight decrease in muscle strength, rated at 4 out of 5.  There was no shoulder instability, dislocation, or labral pathology.  The examiner noted a degenerative joint disease of the clavicle/scapula.  There was tenderness but it did not affect the range of motion of the glenohumeral joint.  He found no conditions or impairment of the humerus.  There was no evidence of malunion or marked deformity.  

Based on the above, DC 5200 (ankylosis) is not applicable.  The Veteran has not contended and the medical evidence is overwhelmingly against any finding that his left shoulder is ankylosed or has been ankylosed during the appeal period.  

Next, a higher rating under DC 5202 (impairment of the humerus) is not warranted. While there are ratings of 40, 50, and 70 percent available under DC 5202, the Veteran's symptoms and impairments do not meet or more closely approximate criteria for those ratings.  Specifically, he does not have fibrous union of the arm, nonunion of the humerus, or loss of the head of the humerus.  Furthermore, he cannot benefit from the assignment of a rating under DC 5202 instead of under DC 5201.  The extensive medical evidence does not support a 20 percent rating under DC 5202 because of the rule against pyramiding.  Of note, the Veteran does not have a dislocation of the left shoulder joint.  
Similarly, a rating under DC 5203 (impairment of the clavicle or scapula) is not warranted.  The highest rating available under DC 5203 is 20 percent where there is dislocation of the clavicle or scapula.  The Veteran's medical records do not demonstrate a malunion, nonunion or dislocation of the clavicle.  

In sum, diagnostic codes for rating a shoulder disability (5200, 5202 and 5203) are not for consideration because the pathology required by such codes (ankylosis of the scapulohumeral articulation; flail shoulder; false flail joint; malunion of the humerus; or impairment of the clavicle or scapula ankylosis) is not shown.  

The remaining diagnostic code applicable to the shoulder is DC 5201 providing for ratings based on the severity of limitation of motion. The Veteran has complained of limited range of motion and chronic pain of the shoulder. The medical record documents his contemporaneous complaints, functional loss, and clinical findings to substantiate his claim. The question before the Board is the degree of impairment caused by those symptoms.  

After consideration, the Board finds that the collective disability picture presented by the Veteran's left shoulder disability most proximate a disability rating of 20 percent.  To qualify for a 30 percent disability rating or higher, the Veteran must demonstrate an arm limitation of motion of at most midway between side and shoulder level.  Except for a very brief period of time in October 2006, the Veteran's limitation of shoulder motion did not measure less than 90 degrees in abduction.  While the Board acknowledges that his October 2006 VA examination report reflected an abduction at 75 degrees, which is less than shoulder level (or 90 degrees), the estimation is closer to shoulder level rather than the position midway between his side and shoulder level (approximately 45 degrees).  Nevertheless, since the Veteran is right hand/arm dominant, his evaluation under Diagnostic Code 5201 will be rated under the minor joint criteria, rather than under major joint.  Under those criteria, the Veteran is entitled to a 20 percent disability rating for an arm limitation of motion at midway between side and shoulder level (approximately 45 degrees.).  Thus, a disability rating in excess of 20 percent is not warranted.  

III.  Extra Schedular Consideration 

The Board has also considered the provisions of 38 C.F.R. § 3.321 (b)(1).  Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008).  However, in this case, the Board finds that the record does not show that the Veteran's depressive disorder, bilateral knee disability, and left shoulder condition are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (b)(1).  

The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the veteran's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the veteran's disability level and symptomatology, then the Veteran's disability is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required.  Thun, 22 Vet. App. 111.  Otherwise, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, VA must determine whether the veteran'ss exceptional disability picture exhibits other related factors, such as those marked interference with employment and frequent periods of hospitalization. 38 C.F.R. § 3.321 (b)(1).


ORDER

Entitlement an increased rating for a depressive disorder in excess of 10 percent prior to January 26, 2007 is denied.

Entitlement to an increased rating for a depressive disorder in excess of 30 percent from January 26, 2007 to June 20, 2016 is denied. 

Entitlement to an increased rating for a depressive disorder and in excess of 70 percent after June 20, 2016 is denied.  

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

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

Entitlement to an initial disability rating of 20 percent for medial meniscus degeneration of the right knee is granted. 

Entitlement to an initial disability rating of 20 percent for medial meniscus degeneration of the left knee is granted.  

Entitlement to an initial disability rating in excess of 10 percent for left shoulder acromioclavicular joint degenerative joint disease and tendinitis is denied.  




____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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