Citation Nr: 1749058	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  14-01 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.

2.  Entitlement to service connection for a sinus disability.

3.  Entitlement to service connection for a gastrointestinal disability.

4.  Entitlement to service connection for an acquired psychiatric disability.

5.  Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease (DJD) of the left knee, to include entitlement to a separate compensable rating for instability.

6.  Entitlement to an initial evaluation in excess of 10 percent for DJD of the right knee, to include entitlement to a separate compensable rating for instability.



ORDER

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

Entitlement to a separate initial rating of 10 percent, but no higher, for instability of the left knee, related to DJD, is granted.

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

Entitlement to a separate initial rating of 10 percent, but no higher, for instability of the right knee, related to DJD, is granted.


WITNESS AT HEARING ON APPEAL

The Veteran


FINDINGS OF FACT

1.  The service-connected DJD of the left knee is manifested by, at worst, a painful range of motion limited to 3 degrees extension and 112 degrees flexion, as well as slight lateral instability.

2.  The service-connected DJD of the right knee is manifested by, at worst, a painful range of motion limited to 5 degrees of extension and 49 degrees of flexion, as well as slight lateral instability.



CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for service-connected DJD of the left knee have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5003, 5261 (2017).

2.  The criteria for a separate rating of 10 percent and no higher for instability of the left knee have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5003, 5257 (2017).

3.  The criteria for a rating in excess of 10 percent for service-connected DJD of the right knee have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5003, 5261 (2017).

4.  The criteria for a separate rating of 10 percent and no higher for instability of the right knee have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5003, 5257 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1974 to August 1975, with additional National Guard service.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi as to sinus disability, bilateral hearing loss, psychiatric disability, and gastrointestinal disability; and an August 2012 rating decision by the RO in Montgomery, Alabama as to entitlement to a higher initial rating for the service-connected left and right knee disabilities.  

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2016.  A transcript of that hearing is of record.  These matters were previously remanded by the Board in July 2016.  

The issues of entitlement to service connection for bilateral hearing loss, sinus disability, gastrointestinal disability, and acquired psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ).

Bilateral Knee Disabilities

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The private treatment records noted in the remand section are not relevant to this decision because the Veteran indicated that they concerned his sinus and gastrointestinal disabilities, rather than his knee disabilities.  To the extent that the July 2012 examination findings do not meet with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016), a new examination would not cure deficiencies of an examination conducted in the past.  Further, In this regard, active range of motion testing produces range of motion test result figures which are more restricted than the results produced by passive range of motion testing in which the physician forces the joint through its motions. Similarly, testing on weight-bearing would generally produce more restrictive results than testing done without weight-bearing. Therefore, in the case at hand, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing on weight-bearing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. Therefore, remand would result in delay with no possible benefit flowing to the Veteran, and is unnecessary.  Soyini v. Principi, 1 Vet. App. 540, 546 (1991).  

The Veteran contends that he should receive a higher disability rating because of the pain and instability of his knees.

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A.    § 1155; 38 C.F.R. Part 4.  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21. 

When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply to the Veteran's disability, 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.

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.  It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements.  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).  The functional loss may be due to absence of part, or all, of 
the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that 
becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  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.  38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis).  However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  Id.; Esteban v. Brown, 6 Vet. App. 259 (1994).  

In VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997), VA's General Counsel determined that, when a claimant has arthritis and instability of the knee, multiple ratings may be assigned under Diagnostic Codes 5003 and 5257.  

Moreover, in VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998), it was found that, even if the veteran did not have limitation of motion of the knee meeting the criteria for a noncompensable evaluation under DC 5260 or 5261, a separate evaluation could be assigned if there was evidence of full range of motion "inhibited by pain."  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  

Degenerative arthritis is governed by DC 5003, and instructs that evaluation shall be on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved.  If noncompensable limitation of motion is demonstrated, a 10 percent evaluation is assigned for each major joint or group of minor joints affected.  In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent evaluation, and the same with occasional incapacitating exacerbations warrants a 20 percent evaluation.  38 C.F.R. § 4.71a, DC 5003.  

For the purpose of rating disability from arthritis, the knee is considered a major joint.  38 C.F.R. § 4.45.  

Under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5260, a 10 percent rating is in order if flexion of the knee is limited to 45 degrees.  A 20 percent rating is in order if flexion of the knee is limited to 30 degrees.  A 30 percent rating is in order if flexion of the knee is limited to 15 degrees.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a 10 percent rating is in order if extension of the knee is limited to 10 degrees.  A 20 percent rating is in order if extension is limited to 15 degrees.  A 30 percent rating is in order if extension is limited to 20 degrees.  A 40 percent rating is in in order if extension is limited to 30 degrees, and a 50 percent rating is warranted if extension is limited to 45 degrees.  

Normal range of motion of the knee is 0 degree extension to 140 degrees flexion.  See 38 C.F.R. § 4.71a, Plate II.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 10 percent rating is in order if there is slight recurrent subluxation or lateral instability.  A 20 percent rating is in order if there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is in order if there is severe recurrent subluxation or lateral instability.  

The question before the Board is whether the Veteran's bilateral knee disability meets the criteria for a rating in excess of 10 percent for each knee.  The Board finds that the most probative evidence of record does not establish that the criteria for a rating in excess of 10 percent have been met for either knee, but, allowing the Veteran the benefit of the doubt, the criteria for an additional 10 percent rating for slight instability of each knee have been met.  

A VA examination was conducted in July 2012.  The examiner noted that there were no flare-ups, normal joint stability testing, and pain on motion.  The Veteran's left knee range of motion was limited to 3 degrees of extension and 112 degrees of flexion, with no additional limitation after repetition.  The right knee range of motion was limited to 5 degrees of extension and 49 degrees of flexion, with no additional range of motion after repetition.  

Private treatment records from January 2016 noted that the Veteran's range of motion was normal with tenderness on both sides.  The Veteran's symptoms were described as moderate.  The Veteran's January 2016 hearing testimony noted that he experiences constant knee pain, and that sometimes his knees lock up.  He reported that he fell a couple of weeks ago because his knees locked up, and that they tend to want to go side to side.  He stated that he uses a brace on his right knee and a wrap on his left knee, and that his knees swell regardless of use.  He could no longer jog due to knee pain, and he testified that he believes his range of motion is about a quarter of normal due to limitation by pain.

Another examination was conducted in February 2017.  The Veteran's right knee range of motion was limited to 135 degrees of flexion and full extension, and his left knee range of motion was limited to 130 degrees of flexion and full extension.  There was pain on flexion, but no additional pain clinically observed on weight-bearing.  There was no additional limitation in the right knee after repetition, but the left knee did show additional limitation to 120 degrees of flexion but full extension after repetitive use.  The examiner indicated no flare-ups.  Joint stability testing was normal, and the examiner found no functional impact on the ability to work.  Passive range of motion was 130 degrees of flexion and full extension bilaterally.  

The most limited range of motion measurements are 112 degrees of flexion and 3 degrees of extension for the left knee, and 49 degrees of flexion and 5 degrees of extension for the right knee.  The right knee range of motion limitation is comparable to the Veteran's approximate assessment of about one quarter of normal movement, and the Board notes that the examiner's exact measurements with a goniometer are more exact and probative than the Veteran's approximate assessment of his range of motion.  Limitation to 30 degrees of flexion or 15 degrees of extension is required for a rating in excess of 10 percent.  Therefore, the requirements for a rating in excess of 10 percent have not been met for either knee.

A separate rating in available for recurrent subluxation or lateral instability under DC 5257.  The Veteran competently testified the sensation of his knees going side to side or locking up, causing him to fall.  The Veteran is competent to report the sensation of his knee feeling unstable or locking up.  However, testing and examination have consistently noted that there is no instability of either of the Veteran's knees.  Resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that he suffers from slight lateral instability, in spite of the tests indicating that the Veteran's knees are stable.  Therefore, the Veteran's disabilities are such that he merits a separate rating of 10 percent and no higher for instability of each knee.  38 C.F.R. § 4.3, 4.71a, DC 5257.  

Neither the Veteran nor his representative has raised any other issue, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 
28 Vet. App. 366, 369-70 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


REMAND

The Veteran contends that his hearing loss was caused by exposure to gunfire and machinery noise during his active service, as well as exposure to carpentry noise during his National Guard service.  His personnel records do indicate that he performed skilled carpentry and masonry duties as part of his National Guard service.  Under VA regulations, in addition to a disability incurred in or aggravated by active duty, service connection may be granted when the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty during a period of active duty for training (ACDUTRA), and when the individual became disabled or died from an injury incurred or aggravated in line of duty during a period of inactive duty training (INACDUTRA).  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6.  ACDUTRA includes full time duty performed by members of the National Guard of any state or the Reservists.  38 C.F.R. § 3.6(c).  INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state.  38 C.F.R. § 3.6(d).  As the Veteran argues that his hearing loss was incurred in or aggravated by his National Guard service, the AOJ should send the Veteran a VCAA notice letter that notifies the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate his service connection claims based on ACDUTRA and INACDUTRA service.  The notice should further indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf.  See 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159.

Additionally, the November 2016 examination report stated that the pure tone threshold results were not valid for rating purposes, and discussed at length indications that the Veteran's hearing is better than the pure tone threshold testing reflects.  As the August 2010 VA examination only demonstrates a hearing loss disability for VA purposes in the left ear, the record does not reflect bilateral hearing loss disability for VA purposes.  A new examination should be scheduled to attempt to obtain valid pure tone threshold results, and to consider whether the Veteran's hearing loss is caused or aggravated by active service or carpentry performed during his National Guard service.  The examiner should also be aware that the Veteran reported doing carpentry all his life in February 2003, indicating that his National Guard service was not his only exposure to carpentry.

The Veteran testified in his hearing that he sought treatment for his sinus and gastrointestinal disabilities in approximately 1975 from Dr. J.B., a private physician.  These records are not associated with the claims file.  Upon remand, an attempt should be made to obtain these relevant medical records.  Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992).  

The February 2017 examination opinion as to sinus disability is inadequate because it does not consider the Veteran's competent report of sinus symptoms since service.  Upon remand, a supplemental opinion should be obtained that considers this relevant evidence.

As to gastrointestinal disability, the Veteran has argued that it is caused by the sinus disability draining fluid into his stomach.  Upon remand, an opinion should be obtained concerning whether the Veteran's gastrointestinal disability is caused or aggravated by the sinus disability.

The February 2017 psychiatric examination found that the Veteran has no firm psychiatric diagnosis.  Although the examiner demonstrated familiarity with the Veteran's VA treatment records, and the Board appreciates the detail of the opinion, there was inadequate discussion of some of the mental health diagnoses contained within the records.  Specifically, the Veteran had a May 2010 Axis I diagnosis of depression not otherwise specified (NOS), which the examiner described as merely reporting depressive symptoms.  A January 2011 treatment note indicated an impression of depressive disorder NOS, and a June 2011 assessment was dysthymic disorder.  A February 2012 assessment included posttraumatic stress disorder, depressive disorder NOS, and anxiety disorder NOS.  Additionally, an August 2007 private treatment record assessed the Veteran with anxiety and depression, and prescribed medication.  The current disability requirement can be satisfied when a claimant has a disability at any time during the pendency of a claim, or even slightly before, even if that disability resolves prior to adjudication.  McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Upon remand, a new examination should be obtained that considers these diagnoses.  If the examiner finds that they are not firm or are otherwise invalid, he or she must provide an adequate rationale for this opinion.

Accordingly, the case is REMANDED for the following action:

1.  Issue notice in compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§5102, 5103, 5103A, 5107 that advises the Veteran of the criteria for service connection based on any periods of ACDUTRA or INACDUTRA.  Request that the Veteran provide the specific dates of each period of ACDUTRA and/or INACDUTRA service, and advise the Veteran of the definitions of the types of service and the types of evidence he may submit to substantiate his claim based on both types of service.  This notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159.

2.  The RO should take all appropriate action to verify all periods of ACDUTRA and INACDUTRA service.  

3.  Request that the Veteran identify the address, and provide authorization, to contact private physician Dr. J.B., who is referenced in the Veteran's hearing testimony.  After obtaining the necessary authorization, request the private treatment records.  The AOJ must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile.  If no records are obtained, the AOJ must (1) inform the Appellant of the records that were not obtained (2) tell the Appellant what steps were taken to obtain them, and (3) tell the Appellant that the claim will be adjudicated without the records but that if he later submits them, the claim may be reconsidered.  See 38 U.S.C.A. § 5103A(b)(2)(B).

4.  Thereafter, schedule the Veteran for a VA audio examination with an appropriate clinician.  After reviewing the claims file and performing any necessary testing, the examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss is caused or aggravated by active service, or performing carpentry while on active duty for training (ACDUTRA) as part of his National Guard service.  The examiner is advised that the Veteran did perform carpentry and masonry as part of his National Guard service, but that he also reported engaging in carpentry all his life in a February 2003 treatment note.

Any opinion offered must be supported by a complete rationale.

5.  After completing instruction 3, attempting to obtain relevant private treatment records, forward the claims file to an appropriate VA clinician.  After reviewing the claims file, the clinician is to provide an opinion regarding whether it is at least as likely as not (50 percent of greater probability) that the Veteran's sinus disability is caused by service.  The clinician is to discuss the Veteran's competent lay statement that he has had sinus symptoms since service.

Any opinion offered must be supported by a complete rationale.

6.  After completing instruction 3, attempting to obtain relevant private treatment records, forward the claims file to an appropriate VA clinician.  After reviewing the claims file, the clinician is to provide an opinion regarding whether it is at least as likely as not (50 percent of greater probability) that the Veteran's gastrointestinal disability is caused or aggravated by (worsened beyond the natural progression) the Veteran's sinus disability. 

Any opinion offered must be supported by a complete rationale.  If a new examination is necessary to provide the requested opinion, such an examination should be scheduled.

7.  Schedule the Veteran for a VA psychiatric examination with an appropriate examiner.  After reviewing the claims file and performing any necessary tests, the examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has an acquired psychiatric disability that is caused by or otherwise related to service.  

Even if the examiner does not diagnose the Veteran with a psychiatric disability, her or she is to consider the following diagnoses of record: a May 2010 Axis I diagnosis of depression not otherwise specified (NOS); A January 2011 impression of depressive disorder NOS; a June 2011 assessment of dysthymic disorder; a February 2012 assessment of PTSD, depressive disorder NOS, and anxiety disorder NOS; and an August 2007 private treatment record assessment of anxiety and depression. 

Any opinion offered must be supported by a complete rationale.  If the examiner feels that any of the diagnoses of record are not firm or are invalid, he or she must support that finding with a complete rationale.  

8.  After completing all of the above development, readjudicate the issues on appeal.  If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.  

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



ATTORNEY FOR THE BOARD	A. Budd, Associate Counsel

Copy mailed to:  Disabled American Veterans

Department of Veterans Affairs

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