Citation Nr: 18160677
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-63 361
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a right knee disability, diagnosed as degenerative joint disease, is granted.
Entitlement to service connection for iatrogenic hematuria is denied.
Entitlement to a compensable rating for bilateral hearing loss is denied.
Entitlement to a rating in excess of 30 percent for post-traumatic stress disorder (PTSD) is denied.  
REMANDED
Entitlement to a compensable rating for left knee flexion from October 27, 2014, to November 11, 2015, and entitlement to a rating in excess of 10 percent for left knee flexion since November 11, 2015, is remanded.
Entitlement to a rating in excess of 10 percent for status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy (claimed as left knee injury) currently evaluated as 10 percent, is remanded.  
FINDINGS OF FACT
1. The Veteran’s right knee disability, diagnosed as degenerative joint disease, is related to his service-connected left knee disability.
2. A disability manifested by iatrogenic hematuria has not been related to the Veteran’s military service.
3. A disability manifested by iatrogenic hematuria has not been related to his service-connected disorders.  
4. Throughout the pendency of the appeal, the Veteran’s service-connected hearing loss disability has been manifested by a hearing loss pattern with no worse than Level I hearing acuity in his left ear and Level I hearing acuity in his right ear.
5.  Throughout the pendency of the appeal, the Veteran’s PTSD exhibits occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a right knee disability, diagnosed as degenerative joint disease, have been met.  38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
2. The criteria for entitlement to service connection for microscopic hematuria, claimed as iatrogenic hematuria, have not been met.  38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).
3. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).
4. The criteria for entitlement to a rating in excess of 30 percent for PTSD have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.21, 4.130, Diagnostic Code (DC) 9411 (2017).  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active duty service in the United States Marine Corps from September 1977 to September 1982. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2015, April 2016, and November 2016 rating decisions of the Department of Veterans Affairs (VA).
Service Connection
The Veteran contends that his disabilities are due to his military service.  
In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999). 
The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 
Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d).  Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. 
In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought.  See 38 C.F.R. § 3.310 (2017).
Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 
Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).
In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra.  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998). 
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).
1. Entitlement to service connection for a right knee disability, diagnosed as degenerative joint disease 
As to a current diagnosis, the Veteran’s right knee condition has been diagnosed as degenerative joint disease.  
Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue.  Following the examination, the examiner stated that it is less likely than not proximately due to or the result of the Veteran’s service connected condition.  The examiner opined that after a review of the Veteran’s claims file “there is no objective medical evidence in the medical literature establishing a direct cause and effect between left knee status post traumatic arthritis with a postoperative period of proximal tibial osteotomy as a result or cause of right knee sprain.”  See March 2016 VA examination.  
In addition, the Board notes that the Veteran submitted a private medical report from his private doctor.  The Veteran’s doctor diagnosed the Veteran with degenerative joint disease and opined that “is more likely than not that the aforementioned is directly and causally related to constant and chronic compensation and adaptation to the weight shifting and altered gait caused by the injured left knee.” Moreover, the doctor added that “weight shifting and altered gait caused by other sub-optimal articulations is a well-known and well-embraced etiology of accelerated degenerative processes.”  See November 2015 private medical opinion.  
In sum, the Board finds that service connection for a right knee disability, diagnosed as degenerative joint disease, is warranted.  After a review of the record, the Board finds that the evidence, both positive and negative as to the issue of service connection for a right knee disability is in equipoise.  Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for the Veteran’s right knee disability, diagnosed as degenerative joint disease.  
2. Entitlement to service connection for iatrogenic hematuria 
As to a current diagnosis, the Veteran’s has been diagnosed as having microscopic hematuria.  See March 2016 VA examination.  
Turning to the medical evidence at hand, the Board has reviewed the Veteran’s service treatment records and the Board notes that the Veteran’s service treatment records are silent for any disability manifested by microscopic hematuria.  In addition, the Board has reviewed the Veteran’s private treatment records and VA treatment records.  After a review of the Veteran’s post-service medical records, the Board finds no evidence of a doctor providing a nexus or medical link between any present disability manifested by microscopic hematuria and the Veteran’s military service. 
Furthermore, the Board notes that the Veteran attended a VA examination for this issue in March 2016.  The examiner opined that a “review of the current medical literature does not support left knee medications as a cause or risk factor for the development of iatrogenic hematuria.  See March 2016 VA examination.  
In sum, the Board finds that service connection for iatrogenic hematuria, is not warranted.  After a review of the Veteran’s claims file, the Board has found no in-service event, injury, or disease that has caused the Veteran to develop iatrogenic hematuria.  Moreover, the Veteran’s post-service medical history contains no evidence that demonstrates that any present disability manifested by hematuria is related to his military service.  Lastly, the March 2016 VA examiner found that the Veteran’s condition is not caused by the medications that the Veteran takes for his service-connected left knee disorder.  In addition, as this condition has not been considered disabling (the examiner referred to it as asymptomatic), there would be basis to address whether it could have been aggravated by service-connected disability (i.e., if it is asymptomatic, there would be no basis for an examiner to find any aggravation).  For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and entitlement to service connection for microscopic hematuria, claimed as an iatrogenic hematuria, is not warranted.
Increased rating
3. Entitlement to a compensable rating for bilateral hearing loss
The Veteran contends that his hearing loss deserves a compensable rating throughout the pendency of the appeal. 
A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained 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.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 
VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
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.  VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2015).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). 
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85.
Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id. 
When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a).  When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86 (b).
To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from “I” for essentially normal acuity, through “XI” for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII.
A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. 
A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. 
Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).
The Board notes that the Veteran is challenging his initial rating following his award of service connection in April 2016.    
Turning to the medical evidence at hand, the Veteran was afforded a VA examination in March 2016.  Upon examination, the examiner recorded pure tone thresholds, in decibels, at 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 30, 40, 40, and 35 for the left ear, with an average of 36, and 30, 30, 40, and 30 for the right ear, with an average of 33.  In addition, the Veteran’s speech recognition score for the left ear was 96 percent and the right ear was 98 percent.  
As no exceptional pattern of hearing loss is reflected by the examination, Table VI is applicable, and reflects that the Veteran had Level I hearing loss in in his left ear and Level I hearing loss in the right ear.  Applying Level I for the left ear and Level I for the right ear results in a noncompensable disability rating, with no exceptional hearing loss pattern shown.  38 C.F.R. §§ 4.85, 4.86 (2017).
In addition, the Board acknowledges that the Veteran submitted a private audiological report from November 2015.  This report demonstrated that the Veteran had a pure tone average of 38 in the right ear and 42 in the left ear.  The Board notes that this audiological evaluation report did not provide speech recognition scores.  Therefore, as the Maryland CNC Test was not used, such report was incomplete for VA purposes.  
Lastly, the Board acknowledges that the Veteran’s private doctor submitted a medical opinion that stated that the Veteran had hearing loss of 40 percent in his left and right ears.  The Board notes that the Veteran’s doctor did not provide any medical information that supported this opinion; thus, the Board is unable to place any probative value on this medical opinion.  See November 2015 private medical report.  
In sum, the Board finds that the Veteran’s disability has remained consistent throughout the appeal and that a rating increase is not warranted.  After a review of the record, the Board finds that the March 2016 VA examination is the most probative piece of evidence.  In turn, the VA examination did not show that the criteria for a compensable rating was met at any time during the appeal period.  Moreover, the Board has also considered the Veteran’s contentions that he has difficulty hearing; however, the Veteran’s contentions are outweighed by the findings of the March 2016 VA examiner.  For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to an initial compensable rating for bilateral hearing loss, must be denied. 
Extra Considerations 
The Board finds that the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances.  Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a Veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances).  As such, no further action as to this matter is required.
Lastly, the Board has also considered the Court’s holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total disability rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability).  However, the Board finds that Rice is not applicable to the current appeal because the Veteran does not claim and the record does not show that his disability acting alone or in conjunction with his other disabilities prevents gainful employment.
4.  Entitlement to a rating in excess of 30 percent for PTSD 
The Board notes that the Veteran is challenging his initial rating.  The Veteran’s disability is currently rated at 30 percent according to Diagnostic Code 9411.  
According to Diagnostic Code 9411, a 30 percent rating is appropriate where the evidence shows 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, and mild memory loss (such as forgetting names, directions, or recent events). 
A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id. 
A 70 percent disability evaluation is warranted when 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); inability to establish and maintain effective relationships.  Id.
A 100 percent disability evaluation is warranted when 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name.  Id.
The Board notes that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  The use of such terminology permits consideration of the items listed and other symptoms and contemplates the effect of those symptoms on both the Veteran’s social and work situation.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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.” Id, at 442.  In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. 
In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994).  The amendments replace those references with references to the recently updated DSM-5, and examinations conducted pursuant to the DSM-5 do not include GAF scores.  As the Veteran’s increased rating claim was certified to the Board after August 4, 2014, the DSM-V criteria will be utilized in the analysis set forth below.
As to a current diagnosis, the Veteran has been diagnosed with an unspecified trauma and stressor related disorder.  
Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in October 2016.  The Veteran reported that he was remarried in 2006 and described their relationship as “rocky.” The Veteran reported that he does not get along with his stepdaughter.  Veteran reported that he maintains friendship with a childhood friend, friend from the Marine Corps, and his cousin.  The Veteran reported that he enjoys fishing and does not engage in any other hobbies.  Lastly, the Veteran denied having any employment related problems.  Following the examination, the examiner opined that the Veteran’s disability exhibited symptoms that caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  
In addition to the VA examination, the Board has reviewed the Veteran’s VA treatment records.  The Board notes that the Veteran does not receive counseling for this disability; however, the Veteran’s VA treatment records demonstrate that the Veteran has reported that he does not experience depression, anxiety, or suicidal ideations.  Moreover, the Veteran’s VA records show that he is happily married and he has been employed at the public works department since 2006.  See August 4, 2016, and September 8, 2016, VA treatment records.  
In sum, the Board finds that the Veteran’s condition has remained consistent, and a rating in excess of 30 percent is not warranted.  The evidence of record does not support a finding that the Veteran’s condition exhibits occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment.  Specifically, the Veteran does not exhibit symptoms such as impaired judgment; impaired abstract thinking; disturbances of motivation and mood, suicidal ideations, hallucinations, near-continuous panic or depression affecting the ability to function independently, or neglect of personal appearance and hygiene.  Additionally, there is no evidence of gross impairment in thought processes or communication, or grossly inappropriate behavior.  After a review of the record, the Board finds that the evidence of record shows that the Veteran’s disability produces occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  In reaching this conclusion, the Board has considered the Veteran’s contentions that his condition warrants a higher rating; however, the Veteran’s contentions are outweighed by the medical evidence of record and the opinion provided by the October 2016 VA examiner.  For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 30 percent for PTSD must be denied.  
Extra Considerations 
The Board finds that the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances.  See Doucette, supra.  As such, no further action as to this matter is required.
Lastly, the Board has also considered the Court’s holding in Rice v. Shinseki.  However, the Board finds that Rice is not applicable to the current appeal because the Veteran does not claim and the record does not show that his disability acting alone or in conjunction with his other disabilities prevents gainful employment.


REASONS FOR REMAND
5. Entitlement to a compensable rating for left knee flexion from October 27, 2014, to November 11, 2015, and entitlement to a rating in excess of 10 percent for left knee flexion since November 11, 2015.  
6. Entitlement to a rating in excess of 10 percent for status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy (claimed as left knee injury) currently evaluated as 10 percent
Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veterans claim so that he is afforded every possible consideration.
As to the issues of entitlement to increased ratings for the Veteran’s left knee disabilities, the Board notes that in the case of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the VA examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34.  The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10.
The Veteran was afforded a VA examination in March 2016 for his left knee disabilities, wherein he complained of having flare-ups associated with his left knee.  Specifically, the Veteran reported that he has daily intermittent pain with prolonged standing and walking lasting several hours.  Following the examination, the VA examiner indicated that the examination was not being conducted during a flare-up and stated that he was unable to say without mere speculation if pain, weakness, or incoordination significantly limit functional ability with flare-ups. Accordingly, the Board finds this examination to be insufficient because the examiner did not obtain the Veteran’s lay statements as to the extent of his functional loss during a flare-up and, if possible, offer range of motion estimates based on that information.  Thus, a remand is necessary in order to provide the Veteran with a new examination.

The matter is REMANDED for the following action:

1. Associate with the claims file the Veteran’s contemporaneous VA treatment records from November 29, 2016 to the present.
2. Schedule the Veteran for a VA examination to determine the current severity of his left knee disability. The claims file should be made available to and reviewed by the examiner and the examiner should provide answers to the following questions:
(A). Full range of motion testing must be performed where possible.  The joint involved should additionally be tested in both active and passive motion, in weight-bearing and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision.
(B). The examiner should also request the Veteran to identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information.  If the examiner is unable to provide an opinion on the impact of any flare-ups on range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information.

In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay claims regarding the observable symptoms he has experienced. 
The VA examination report must include a complete rationale for all opinions expressed. 
If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

 
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Rescan, Associate Counsel  

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