Citation Nr: 1749042	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-37 753	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to a disability rating in excess of 20 percent for post-operative residuals of a left knee patellofemoral syndrome.

2.  Entitlement to a disability rating in excess of 30 percent for hypertensive cardiovascular disease.  

3.  Entitlement to a disability rating in excess of 30 percent for migraine headaches.  

4.  Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected disabilities.

5.  Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected disabilities.

6.  Entitlement to service connection for an acquired psychiatric disorder, to include depression and post-traumatic stress disorder.

7.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Esq.


ATTORNEY FOR THE BOARD

E. Ko, Associate Counsel


INTRODUCTION

The Veteran had active service from December 1976 to May 1989.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  

In April 2016, the Board denied entitlement to a disability rating in excess of 20 percent for post-operative patellofemoral syndrome of the left knee.  At the same time, the Board remanded the issues of entitlement to increased ratings for hypertensive cardiovascular disease and migraine headaches, service connection for a bilateral hip disability, a lumbar spine disability, and an acquired psychiatric disorder, to include depression and post-traumatic stress disorder, and a total disability rating based upon individual unemployability due to service-connected disabilities.

In January 2017, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand, and ordered that the portion of the Board's April 2016 decision which denied entitlement to a disability rating in excess of 20 percent for post-operative patellofemoral syndrome of the left knee be remanded for action consistent with the terms of the Joint Motion.

The issues of entitlement to an increased rating for migraine headaches, service connection for a bilateral hip disability, a lumbar spine disability, and an acquired psychiatric disorder, to include depression and posttraumatic stress disorder, and a total disability rating based upon individual unemployability due to service-connected disabilities are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's post-operative residuals of a left knee patellofemoral syndrome are not manifested by flexion limited to 15 degrees or extension limited to 20 degrees.  There is no medical evidence showing that his left knee is ankylosed, or that it is manifested by impairment of the tibia and fibula, or genu recurvatum.

2.  From February 20, 2006, the Veteran had slight lateral instability of the left knee.  Post-operative residuals of a left knee patellofemoral syndrome are not manifested by moderate instability or recurrent subluxation.  

3.  The Veteran's hypertensive cardiovascular disease has not been manifested by more than one episode of congestive heart failure in the past year, or; by a workload of less than 5 metabolic equivalents resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular ejection fraction of less than 51 percent.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 20 percent for post-operative residuals of a left knee patellofemoral syndrome have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5256, 5258 - 5261 (2017).

2.  The criteria for a separate 10 percent disability rating, but no higher, for left knee instability from February 20, 2006 have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5257 (2017).

3.  The criteria for a disability rating in excess of 30 percent for hypertensive cardiovascular disease have not been satisfied.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.10, 4.14, 4.104, Diagnostic Code 7007 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the claims decided, 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 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Further, the Board finds that there has been substantial compliance with its April 2016 remand directives with respect to the claims decided.  See Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  

Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Post-operative residuals of a left knee patellofemoral syndrome

The Veteran contends that his post-operative residuals of a left knee patellofemoral syndrome warrants a rating higher than 20 percent.  There is no diagnostic code specifically applicable to patellofemoral syndrome, so this disability is rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5260, applicable to limitation of flexion of the leg.  38 C.F.R. § 4.20.  The use of the "99" diagnostic code reflects the disability is unlisted.  38 C.F.R. § 4.27.  

Under Diagnostic Code 5260, limitation of flexion of the leg provides a noncompensable rating where flexion is limited to 60 degrees, a 10 percent rating where limited to 45 degrees, a 20 percent rating where limited to 30 degrees, and a maximum 30 percent rating where limited to 15 degrees.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, limitation of extension of the leg provides a noncompensable rating where extension is limited to 5 degrees, a 10 percent rating where limited 10 degrees, a 20 percent rating where limited to 15 degrees, a 30 percent rating where limited to 20 degrees, a 40 percent rating where limited to 30 degrees.  Id.  

Under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261, a veteran may receive separate ratings for limitations in both flexion and extension.  See VAOPGCPREC 9-2004.  

Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a maximum 30 percent rating for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5259, a 10 percent rating can be assigned for symptomatic removal of semilunar cartilage.  Id.  The Board acknowledges that the Veteran underwent a partial lateral meniscectomy in July 1987 and reports pain and instability.  As such, these criteria may be applicable in the instant case.  However, the Board finds that the 10 percent rating under 5257, which will be granted in this decision, to encompass the symptomatology denoted under 5259.  For these reasons, grant of a separate rating under 5259 would constitute impermissible pyramiding.  See 38 C.F.R. § 4.14.

Under Diagnostic Code 5258, a 20 percent rating can be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  Id.  While the Veteran has complained of frequent episodes of joint locking, pain effusion, and crepitus, there is no clinical evidence of record showing that the disorder is manifested by a meniscal dislocation or tear.  Hence Diagnostic Code 5258 is not for application.  38 C.F.R. § 4.71a.

The Board has also considered Diagnostic Codes 5256, which provides a rating for ankylosis, 5262, which provides a rating for impairment of the tibia and fibula, and 5263, which provides a rating for genu recurvatum.  As the medical evidence of record does not document ankylosis, an impairment of the tibia and fibula, or genu recurvatum, these diagnostic codes are not for application.  Id.

Upon review of the record, the Board finds that a rating higher than 20 percent under Diagnostic Code 5260 and a separate compensable rating under Diagnostic 5261 are not warranted.

At an October 2007 VA knee examination, the range of motion study revealed flexion to 110 degrees with pain and extension to 0 degrees without pain.  There was no additional limitation after repetition of all motions.  The Veteran reported symptoms of stiffness, instability, locking, and swelling.  He also indicated that his left knee disability had no effect on his activities of daily living and that he was able to engage in chores, sports, and exercise with some limitations.  The Veteran relied upon a single cane for ambulation and wore a left knee brace.  Upon physical examination, the examiner found no left knee deformity, tenderness, crepitation, or instability.  There was no evidence of ankylosis and the Veteran reported no flare-ups.  

At a July 2014 VA examination, the range of motion study revealed flexion to 80 degrees, with painful motion at 75 degrees, and extension to 0 degrees.  There was an additional limitation after three repetitions of range of motion, with flexion reduced to 75 degrees.  The examiner reported left knee pain, with flare-ups of pain, and periodic buckling and locking of the knee.   Upon physical examination, the examiner found no instability, weakened movement, excess fatigability, or incoordination.  The examiner noted functional loss and pain to palpitation of the left knee.  The Veteran did not use assistive devices as a normal mode of locomotion.  The examiner found that it was more likely than not that the Veteran would have at least a 5 degree change in left knee flexion with a significant flare-up or repeated use over a period of time.  

With respect to the range of motion studies performed throughout the appeal period, the Veteran exhibited flexion limited to no more than 75 degrees and full extension of the knee.  Hence, entitlement to a rating of 30 percent for a limitation flexion under Diagnostic Code 5260, which requires that flexion limited to 15 degrees, and a compensable rating for extension under Diagnostic Code 5261 are not warranted.  

With respect to Diagnostic Code 5257, the Board finds that there is evidence of slight instability of the left knee.  VA treatment records throughout the appeal period show consistent complaints of giving way and instability of the left knee.  In July 2010, the Veteran went to the emergency room with complaints of left knee pain after his left knee gave out and he fell.  Hence, a separate 10 percent disability rating, but no higher, under Diagnostic Code 5257 for slight lateral instability of the left knee is warranted from February 20, 2006.  There is, however, no evidence showing either moderate lateral instability or moderate recurrent subluxation.  As such, a 20 percent rating under Diagnostic Code 5257 is not in order. Indeed, the July 2014 examiner specifically found no evidence of subluxation.

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against assignment of any higher ratings, it is not applicable.  See 38 U.S.C.A. § 5107(b). 

Hypertensive Cardiovascular Disease

The Veteran seeks a disability rating higher than 30 percent for hypertensive cardiovascular disease, which has been rated under 38 C.F.R. § 4.104, Diagnostic Code 7007.

Under Diagnostic Code 7007, a 30 percent disability rating is provided where a workload of greater than 5 metabolic equivalents but not greater than 7 metabolic equivalents results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  38 C.F.R. § 4.104.

A 60 percent disability rating is provided where there is more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 metabolic equivalents but not greater than 5 metabolic equivalents results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  Id.

When evaluating disabilities of the cardiovascular system under Diagnostic Code 7007, it must be ascertained whether cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication.  38 C.F.R. § 4.100.  

An October 2007 VA examination noted that an October 2000 echo report showed a left ventricular ejection fraction of 55 percent and a February 2007 X-ray showed cardiomegaly.  The examiner estimated a workload of 10 metabolic equivalents.  There was no history of a myocardial infarction, congestive heart disease, syncope, angina, dizziness, or dyspnea.  The Veteran required continuous medication and had a daily fatigue.  

At a July 2014 VA examination, the Veteran reported going to the emergency room approximately six times over the years with complaints of chest pains, but was released each time without a diagnosis.  The Veteran did not require continuous medication to control his heart condition.  There was no history of myocardial infarction, congestive heart failure, or any other hospitalizations for the Veteran's heart disability.  According to a July 2014 electrocardiogram, the Veteran had cardiac hypertrophy.  An interview based study showed 7 to 10 metabolic equivalents with reports of dyspnea and angina.  The examiner noted that the level of metabolic equivalents was affected by bilateral knee and hip arthritis and that it was not possible to accurately estimate the metabolic equivalents due solely to the Veteran's heart condition.  

An October 2016 VA examination noted no history of myocardial infarction, congestive heart failure, or hospitalizations for the Veteran's heart disability.  The Veteran required continuous medication for his hypertensive cardiovascular disease.  An October 2016 echocardiogram showed no evidence of cardiac dilatation and a left ventricular ejection fraction of 58 percent.  An interview based study showed 3 to 5 metabolic equivalents with reports of dyspnea and fatigue.  The examiner noted, however, that this level of metabolic equivalents was not solely due to the Veteran's heart condition.  As such, the examiner estimated 7 to 10 metabolic equivalents due solely to the heart condition.  The examiner explained that the Veteran's activity intolerance was most likely due to severe general deconditioning.  

VA treatment records show that the Veteran's left ventricular ejection fraction was 55 percent in May 2011 and 58 percent in September 2011.  

The above evidence shows that the Veteran's hypertensive cardiovascular disease does not warrant a rating higher than 30 percent as his metabolic equivalents due to his heart disorder were consistently above 5 and his left ventricular ejection fraction was consistently about or above 55 percent.  At no time during the appeal period has the Veteran's heart condition been manifested by episodes of congestive heart failure, an ejection fraction less than 50 percent, or less than 5 metabolic equivalents.  

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against assignment of any higher ratings, it is not applicable.  See 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to a disability rating in excess of 20 percent for post-operative residuals of a left knee patellofemoral syndrome is denied.

Entitlement to a separate 10 percent disability rating, but no higher, for left knee instability from February 20, 2006 is granted subject to the laws and regulations governing the award of monetary benefits.

Entitlement to a disability rating in excess of 30 percent for hypertensive cardiovascular disease is denied.


REMAND

Migraines

The October 2016 VA examination does not substantially comply with the Board's April 2016 remand directives because the examiner did not address the Veteran's October 2007 report that his migraine headaches caused him to miss two weeks of work during a twelve month period.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Moreover, the examination is not adequate to make an informed decision on the Veteran's claim.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The October 2016 examiner stated that the only discussion of migraines outside of VA examinations was in a July 1, 2015 medical report.  However, the record shows at least two other complaints of headaches in March and May 2015.  As the examination is based upon an inaccurate factual premise, another examination is warranted.

Lumbar Spine and Bilateral Hip

The October 2016 VA examinations and December 2016 addendum opinions are not adequate to make an informed decision on the Veteran's claim.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The examinations and opinions did not address whether any of the Veteran's service-connected disabilities permanently aggravated his lumbar spine and bilateral hip disabilities.  Hence, new examinations are warranted.  

Psychiatric Disorder

The RO's development of the Veteran's claim for service connection for an acquired psychiatric disorder, to include depression and PTSD, does not comply with the Board's April 2016 remand directives, because the RO did not attempt to verify the Veteran's alleged stressors of (1) witnessing casualties due to a Nicaraguan invasion of Honduras in June 1981 and (2) witnessing the death of a fellow soldier during a parachuting accident when the Veteran was stationed at Fort Bragg, North Carolina.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Individual Unemployability

The issue of entitlement to a total disability rating based on individual unemployability must be remanded together with the other remanded issues because they are inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding VA or private treatment records after procuring the appropriate releases where necessary. 

2.  Contact the Veteran and for any additional necessary details regarding his two reported stressors: (1) witnessing casualties of the Nicaraguan invasion of Honduras in June 1981 and (2) witnessing the death of a fellow soldier during a parachuting accident when the Veteran was stationed at Fort Bragg, North Carolina.  

Then attempt to verify the two reported stressors.  Requests should be made to all appropriate official sources, including, but not limited to, the United States Army and the Joint Services Records Research Center.  

If the RO cannot locate such records, it must specifically document in writing all attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The Veteran must then be given an opportunity to respond.

3.  Obtain clear, legible copies of the Veteran's military personnel records to include his DA Form 1307, "Individual Jump Record."  If the RO cannot locate such records, it must specifically document in writing all attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The Veteran must then be given an opportunity to respond.

4.  After the above development has been completed, schedule the Veteran for a VA examination to determine the current severity of his service-connected migraine headaches.  The examiner must respond to the following:

(a)  Measure and record all subjective and objective symptomatology of the Veteran's headaches.  Describe the frequency, severity, and duration of any characteristically prostrating attacks attributable to migraine headaches, to include whether the attacks are completely prostrating or prolonged.

(b)  Offer an opinion as to the effect of the Veteran's headaches on his employability and activities of daily living, specifically whether they are at least as likely as not productive of severe economic inadaptability.

The examiner must address the Veteran's October 2007 report that his migraine headaches caused him to miss two months of work during a twelve month period.

5.  After directives 1 through 3 have been completed, schedule the Veteran for VA examinations to address the nature and etiology of his bilateral hip and lumbar spine disability.  The examiner must opine whether it is at least as likely as not that the Veteran's current lumbar spine and/or bilateral hip disabilities are related to his military service.  The examiner must address the impact, if any, due to a 1985 motor vehicle accident and the appellant's parachute jumps.

The examiner must also opine whether it is at least as likely as not that the Veteran's current lumbar spine and/or bilateral hip disabilities were caused or aggravated by a service-connected disability, to include his left knee disabilities.  

6.  After directives 1 through 3 have been completed and if any claimed stressor is verified, or other evidence is submitted to suggest a relationship between any psychiatric disorder and service, VA must schedule a VA psychiatric examination.  

The examiner must diagnose all Axis I psychiatric disorders.  The examiner is to state whether the Veteran's psychiatric symptoms meet criteria for post-traumatic stress disorder.  If the Veteran is diagnosed with post-traumatic stress disorder, the examiner must opine whether it is at least as likely as not that post-traumatic stress disorder is related to a verified stressor.  As to any other Axis I diagnosis, the examiner must opine whether it is at least as likely as not that the disorder is related to active military service or events therein.  

7.  The Veteran must be scheduled for the above examinations with VA examiners who have not seen him previously.  All examiners are to be provided access to the VBMS file, the Virtual VA file, and a copy of this remand.  The examiners must specify in the report that these records have been reviewed.  

All examiners must provide a complete rationale for all requested opinions. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and he/she must provide the reasons why an opinion would require speculation. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular doctor.

8.  The Veteran is hereby notified that it is his responsibility to report for all scheduled examinations, and to cooperate in the development of his claims.  He is further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claims.  38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address.  It should also be indicated whether any notice sent was returned as undeliverable.

9.  After the requested development has been completed, the RO must review the record to ensure that it is in complete compliance with the directives of this remand.  If the development is deficient in any manner, the RO must implement corrective procedures at once.

10.  Then readjudicate all claims to include entitlement to a total disability rating based on individual unemployability and readjudicate the claims.  If any benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).




______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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