Case A24035001

R. BISIGNANI · 2024 · Case ID: A24035001

MIXED

Summary

The Veteran served on active duty from January 1979 to July 1985. The Veteran died in July 2022, and the appeal is brought by his surviving spouse. The Veteran withdrew his appeal for entitlement to Total Disability based on Individual Unemployability (TDIU) at a February 2024 hearing. The Veteran also appealed the denial of an increased rating for recurrent major depressive disorder, service connection for residuals of a left hand injury, low back disability, and bilateral ankle disabilities. The Board denied the increased rating for major depressive disorder, finding the Veteran's symptoms, while present, did not meet the criteria for a 70 percent rating, with the evidence more closely approximating a 50 percent rating. Service connection for the left hand injury was denied as the VA examiner opined it was less likely than not related to service, and the service treatment records were negative for chronicity. The low back disability claim was denied as service treatment records were negative for complaints or treatments, and the VA examiner opined it was less likely than not related to service. The bilateral ankle disabilities were claimed as secondary to the service-connected left knee disability, but the VA examiner opined this secondary connection was less likely than not, attributing the ankle issues to morbid obesity. The Board found the evidence against a secondary connection and denied service connection for the bilateral ankle disabilities. Service connection for the left knee disability was granted at a 30 percent rating, based on limitation of motion and pain, affording the Veteran the benefit of the doubt.

Special Benefit

TDIU

Docket No.

191216-335297

Full Decision Text

Citation Nr: A24035001
Decision Date: 06/28/24 Archive Date: 06/28/24

DOCKET NO. 191216-335297
DATE: June 28, 2024

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed.

Entitlement to a rating in excess of 50 percent for a recurrent major depressive disorder disability is denied.

Entitlement to a 30 percent rating for a left knee disability is granted.

Entitlement to service connection for a residuals of a left hand injury, is denied.

Entitlement to service connection for a low back disability is denied.

Entitlement to service connection for right ankle disability is denied.

Entitlement to service connection for left ankle disability is denied.

FINDINGS OF FACT

1. During the Board hearing, the Veteran withdrew his appeal for entitlement to a TDIU.

2. The Veteran's recurrent major depressive disorder was manifested by symptoms consistent with occupational and social impairment with reduced reliability and productivity; neither occupational and social impairment with deficiencies in most areas nor total occupational and social impairment are shown.

3. The Veteran's left knee disability had been manifested by findings of limitation of flexion of flexion that resulted additional functional loss that resulted in weakness, limited motion, and additional pain.

4. Residuals of a left hand injury are not related to service.

5. A low back disability was not shown in service and is not otherwise related to service.

6. The Veteran's bilateral ankle disabilities were not related to service, and were not caused or aggravated by a service-connected disability.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal by the Veteran as to the issue of entitlement to a TDIU have been met. 38 U.S.C. § 7105(b) (2), (d) (5) (2012); 38 C.F.R. § 20.204 (2021).

2. The criteria for entitlement to a disability rating in excess of 50 percent for recurrent major depressive disorder are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2021).

3. The criteria for a 30 percent rating for the Veteran's left knee disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2021).

4. Residuals of a left hand injury was not incurred in active military service. 38 U.S.C. §§ 1101, 5107 (2012); 38 C.F.R. § 3.303 (2021).

5. A low back disability was not incurred in active military service. 38 U.S.C. §§ 1101, 5107 (2012); 38 C.F.R. § 3.303 (2021).

6. The criteria for service connection for a right ankle disability, to include as secondary to a service-connected disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103(A) (2012); 38 C.F.R. §§ 3.303, 3.310 (2021).

7. The criteria for service connection for a left ankle disability, to include as secondary to a service-connected disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103(A) (2012); 38 C.F.R. §§ 3.303, 3.310 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1979 to July 1985. The Veteran died in July 2022. The appellant is the Veteran's surviving spouse, and she has been determined to be a valid substitute claimant.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 higher level review rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

On August 23, 2017, the President signed into law
5103, 5103(A) (2012); 38 C.F.R. §§ 3.303, 3.310 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 higher level review rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review.

In December 2019, the Veteran submitted VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) and selected Hearing with a Veterans Law Judge Board review option, indicating he wanted a Board hearing and the opportunity to submit additional evidence in support of the appeal within 90 days of hearing.

In a February 2024 Board hearing, the appellant testified before the undersigned Veterans Law Judge. A hearing transcript has been associated with the claims file.

The Board notes the record was left open for 90 days in order for the appellant to submit additional evidence in support of his claim.

Withdrawal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2021). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204.

In the present case, the Veteran and his authorized representative indicated at the Veteran's February 2024 hearing that the Veteran wished to withdraw his appeal as to the issue of entitlement to a TDIU. Therefore, the Veteran has withdrawn his appeal as to this issue, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed.

Increased Ratings

Laws and Regulations

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether the most persuasive evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2021). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020).

The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. §
. § 1155; 38 C.F.R. § 4.1 (2021). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020).

The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2021). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2021). 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).

In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his recurrent major depressive disorder and left knee disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record and are probative for resolving the matter on appeal.

The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.

Recurrent Major Depressive Disorder

The Veteran's recurrent major depressive disorder is rated as 50 percent disabling for the period on appeal under Diagnostic Code 9434.

The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130.

Under the general rating formula for mental disorders, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning.

A 50 percent rating requires 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; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating requires 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 affected 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 worklike setting); and inability to establish and maintain effective relationships.

A 100 percent rating is assigned 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 to perform activities of daily living
suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affected 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 worklike setting); and inability to establish and maintain effective relationships.

The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the 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. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002).

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 solely on the basis of social impairment. 38 C.F.R. § 4.126 (2020).

Factual Background and Analysis

The appealed January 2019 rating decision continued a 50 percent rating for major depressive disorder. The Board notes a subsequent September 2019 rating decision granted an increased 70 percent rating, effective August 15, 2019, and a December 2019 rating decision reduced the Veteran's major depressive disorder to a 50 percent rating, effective November 21, 2019. As the period on appeal for this decision ends with the decision on appeal, which is the January 2019 rating decision, these changes in evaluation fall outside the period on appeal currently before the Board and will not be addressed.

The Veteran underwent a VA examination in May 2016. The examiner noted that the Veteran had a diagnosis of moderate major depressive disorder. The examiner summarized the Veteran's level of occupational and social impairment with regards to all mental diagnoses as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran remained married to his wife of 33 years and had noted that the relationship had improved since his medication. His symptoms included depressed mood and disturbances of mood and motivation. The examiner found that the Veteran's depression was moderate and did not preclude employment.

After reviewing evidence of record as a whole, the Board finds that the assignment of a disability rating greater than 50 percent for the Veteran's service-connected acquired psychiatric disorder is not warranted for the period on appeal.

In this regard, the evidentiary record was negative for speech that was intermittently illogical, obscure or irrelevant; spatial disorientation; or near-continuous panic or depression affecting his ability to function independently.

Moreover, the rating criteria for a 70 percent evaluation require that a claimant be unable to establish or maintain social relationships. The Veteran's social impairment more closely contemplates a 50 percent evaluation as he continued to have a good relationship with his wife.

There was no evidence the Veteran's thinking was impaired and there was no evidence of delusions or impaired thought processes. There was also no evidence of paranoia or suicidal or homicidal ideation.

As noted above, the Veteran's symptoms included depressed mood and disturbances of motivation and mood.

However, while the Board accepts that the Veteran's recurrent major depressive disorder had effects on his functioning, the lay and medical evidence of record does not demonstrate significant deficiencies in most areas.

Indeed, at no point in this time period did the VA examiner or any other examiner or treating physician find that the Veteran's psychiatric impairments caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as is required for the assignment of a 70 percent rating; or cause total occupational and
usions or impaired thought processes. There was also no evidence of paranoia or suicidal or homicidal ideation.

As noted above, the Veteran's symptoms included depressed mood and disturbances of motivation and mood.

Indeed, at no point in this time period did the VA examiner or any other examiner or treating physician find that the Veteran's psychiatric impairments caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as is required for the assignment of a 70 percent rating; or cause total occupational and social impairment, as is required for the assignment of a 100 percent rating.

In fact, the Board notes that the May 2016 VA examiner specifically described the Veteran's symptoms as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication, which fits squarely for the criteria for a 10 percent evaluation under the General Rating Formula.

Thus, while the record demonstrates that the Veteran did have some social and occupational impairment which impacted his quality of life, the greater weight of evidence demonstrates that it is to a degree less that is contemplated by the 50 percent rating currently assigned. In determining that a rating in excess of 50 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria but concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of a 50 percent rating.

Accordingly, this evidence demonstrates that the Veteran did not have deficiencies in most of the areas in the criteria for a 70 percent rating nor had he been shown to have most of the symptoms listed as examples in the criteria. As the criteria for the next higher (70 percent) rating for a psychiatric disorder have not been met, it follows that criteria for an even higher rating (100 percent) have not been met.

There is no showing that the Veteran had gross impairment of thought processes or communication, persistent delusions, exhibited grossly inappropriate behavior; intermittent inability to perform activities of daily living as a result of his psychiatric symptoms, or disorientation to time or place. As discussed, the evidence also weighs strongly against finding that his disability was manifested by total social impairment as the Veteran had been able maintain a relationship with his wife. Thus, the Board finds that the most persuasive evidence is against the claim as the Veteran's symptoms more closely approximated the criteria for a 50 percent disability rating, and neither a 70 or 100 percent rating.

The Board has considered whether there is any other basis for granting a higher rating but has found none. As such, rating in excess of 50 percent for recurrent major depressive disorder is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Left Knee

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45.

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

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.
, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).

The Veteran's left knee disability is currently rated as 20 percent disabling under Diagnostic Code 5260.

Diagnostic Code 5003 states that 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When the limitation of motion is not compensable under appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1.

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

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

Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262.

Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021).

The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2020). The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding
38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021).

VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id.

A claimant who has arthritis and instability of the knee may also be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257, and rating a knee disability under both of those codes does not amount to pyramiding under 38 C.F.R. § 4.14 (2020). VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate rating must be based on additional compensable disability.

Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a maximum 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258.

Diagnostic Code 5259, removal of semilunar cartilage, symptomatic, warrants a 10 percent rating.

For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II.

Factual Background and Analysis

The Veteran underwent a VA examination in May 2016. The diagnosis was chondromalacia patella, left knee with osteoarthritis and degenerative joint disease. The Veteran reported that his knees wobbled more and gave way at times. He did not report flare-ups. He reported functional loss with walking, exercising, playing with kids and squatting. Flexion of the left knee was from 0 to 115 degrees. There was pain noted on the examination that caused functional loss. There was pain with weight bearing. There was mild tenderness to palpation. He was able to perform repetitive use testing with no additional loss of motion after 3 repetitions. The examiner noted that pain significantly limited functional ability with repeated use over time but he was unable to determine with resorting to mere speculation in terms of degrees of limitation of motion. There was interference with sitting, interference with standing and disturbance of locomotion. Muscle strength testing was normal and the Veteran did not have atrophy or ankylosis. He had normal joint stability testing and there was no evidence of patellar subluxation or dislocation. He had no shin splints, no meniscal condition, and no history of joint replacement. The Veteran constantly used a brace and a cane and occasionally used a wheelchair. The examiner noted that the Veteran's left knee disability impacted his ability to work as the Veteran had limitations with walking, sitting, standing, squatting and using stairs.

The Veteran underwent a VA examination in April 2017. The diagnosis was chondromalacia patella, left knee with osteoarthritis and degenerative joint disease. The Veteran reported flare-ups of his left knee as he had increases in pain, stiffness and falls. The Veteran noted that during flare-ups he could not walk for more than half of a block and could not stand for more than 10 minutes. Flexion of the left knee was from 0 to 125 degrees. There was pain noted on the examination. There was no evidence of pain with weight bearing, active motion and passive motion. He was able to perform repetitive use testing with no additional loss of motion after 3 repetitions. The examiner noted he was unable to determine with resorting to mere speculation whether pain, weakness, fatig
was chondromalacia patella, left knee with osteoarthritis and degenerative joint disease. The Veteran reported flare-ups of his left knee as he had increases in pain, stiffness and falls. The Veteran noted that during flare-ups he could not walk for more than half of a block and could not stand for more than 10 minutes. Flexion of the left knee was from 0 to 125 degrees. There was pain noted on the examination. There was no evidence of pain with weight bearing, active motion and passive motion. He was able to perform repetitive use testing with no additional loss of motion after 3 repetitions. The examiner noted he was unable to determine with resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time and during flare ups. Muscle strength testing was normal, and the Veteran did not have atrophy or ankylosis. He had normal joint stability testing and there was no evidence of patellar subluxation or dislocation. He had no shin splints, no meniscal condition, and no history of joint replacement. There was occasional swelling of the left knee. The Veteran constantly used a brace for his ankle disability. The examiner noted that the Veteran's left knee disability impacted his ability to work as the Veteran had pain all of the time, was limited in his activities, and could not stand, walk or sit one position for prolonged periods of time.

Based on the reported symptomatology of the Veteran's limitation of motion and reported functional impairment at his May 2016 and April 2017 VA examinations, the Board finds that when affording the Veteran the benefit of the doubt, that a 30 percent disability rating is warranted for the service-connected left knee disability.

Regarding limitation of flexion, the Board notes that for a 30 percent evaluation under Diagnostic Code 5260, the Veteran must demonstrate flexion limited to 15 degrees or extension must be limited to 20 degrees. Notably, the May 2016 VA examination demonstrated left knee flexion from 0 to 115 degrees and the April 2017 VA examination demonstrated left knee flexion from 0 to 125 degrees.

However, the May 2016 VA examiner noted the Veteran had interference with sitting, interference with standing and disturbance of locomotion.

Additionally, on the April 2017 VA examination, the Veteran reported that during flare-ups he could not walk for more than half of a block and could not stand for more than 10 minutes.

Both the May 2016 and April 2017 VA examiners also noted that the Veteran's left knee disability impacted his ability to work as the Veteran had pain all of the time, was limited in his activities, and could not stand, walk or sit one position for prolonged periods of time.

Based on the reported symptomatology of the Veteran's reported functional impairment at his May 2016 and April 2017 VA examinations, the Board finds that when affording the Veteran the benefit of the doubt that a higher 30 percent rating is warranted for the Veteran's left knee disability for limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202.

However, while the Board finds that the Veteran's left knee disability warrants a higher 30 percent disability rating, the evidence does not demonstrate that a rating is warranted for an evaluation in excess of 30 percent.

The Board notes that the maximum rating for limited flexion of the knee does not exceed 30 percent. Hence, a higher rating under Diagnostic Code 5260 is inapplicable.

Additionally, the evidence reflects that the Veteran had full extension of the left knee without objective evidence of painful motion. Therefore, a rating under Diagnostic Code 5261is not applicable.

The Board has also considered other diagnostic codes to determine if higher or separate evaluations are warranted for the left knee disability. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply.

The Board also finds that a separate or higher rating is not warranted under Diagnostic Codes 5258 or 5259 as there is no evidence of a meniscus disability or meniscal surgery. Regardless, as the Veteran is now being awarded a 30 percent rating for a left knee disability based, in part, on pain and limitation of motion, separate disability ratings under either Diagnostic Codes 5258 and 5259 would violate 38 C.F.R. § 4.14 and the rule against pyramiding as those codes already contemplate such manifestation. Thus, for this reason, separate ratings under these codes would
or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply.

Additionally, there is no showing of instability as the May 2016 and April 2017 VA examination reports showed no instability.

The Board notes that on the May 2016 VA examination, the Veteran reported that his knee gave way and wobbled.

However, the Board finds the most probative evidence demonstrates that there is no history of recurrent patellar subluxation/dislocation or knee instability. In making these findings, the Board is cognizant of the duty to consider and weigh all pertinent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (it is the "duty [of] the Board to analyze the credibility and probative value of evidence"); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the province of the Board to weigh and assess the evidence of record). The Board also notes that a Veteran is considered competent to report symptoms that are capable of ordinary observation, and objective medical evidence is not required to establish knee instability under Diagnostic Code 5257. English v. Wilkie, 30 Vet. App. 347 (2018).

The Board however finds the objective medical evidence is more probative on the issue of instability of the left knee than the Veteran's lay assertions. As noted above, weight is given to the medical opinions provided by the examiners during the May 2016 and April 2017 VA examinations because they are well-supported by the objective clinical findings and are consistent with past examination findings.

Some weight is given to the Veteran's lay testimony, but the Board finds the objective examination findings regarding instability to be more probative. In coming to this conclusion, the Board reviewed the entire medical record and the Veteran again did not exhibit knee instability as the May 2016 and April 2017 VA examinations have all specifically found that there is no showing of instability even upon specific instability testing.

Based on this, the Board finds the most persuasive evidence is against finding the Veteran has left knee instability.

As the medical findings showed no laxity and no objective evidence of subluxation, the Board concludes that a separate disability rating under Diagnostic Code 5257 is not warranted for the left knee.

Accordingly, the Board finds that a 30 percent rating, but no higher, for the left knee disability (limitation of motion) is warranted.

Service Connection

Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves
38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b).

Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b).

In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Residuals, Left Hand Injury

The Veteran's service treatment records demonstrate that in January 1981, the Veteran was treated for a puncture wound of his left hand.

In January 1984, the Veteran suffered an incision to his left palm that was approximately 30cm long as the result of a box cutter accident. A subsequent service treatment record that month noted some swelling of the left hand.

The Veteran underwent a VA examination in January 2018. The diagnosis was a puncture wound to his left hand that occurred in January 1981. The Veteran reported that during service, he was cleaning his weapon when he punctured his left hand. Since this incident, he reported consistent pain, especially in the cold weather. His current symptoms were asymptomatic. Range of motion was normal and there was no pain noted on the examination. The examiner opined that it was less likely than not that the Veteran's claimed residuals, left hand disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted both the January 1981 and January 1984 left hand injuries in service, but noted that these conditions in service were acute only as there was no evidence of chronicity of care.

When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a residuals, left hand injury disability is not warranted.

As there is a current diagnosis of a left-hand pain, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).

Notably, the Veteran's service treatment records demonstrate that the Veteran presented with complaints of left-hand injuries in both January 1981 and January 1984. Despite these complaints and treatment, the service treatment records
veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).

Furthermore, the only medical opinions addressing the etiology of the left-hand disability weigh against the claim. As noted above, the VA examiner in a January 2018 opinion concluded that it was less likely than not that the Veteran's left-hand disability was incurred during the Veteran's active military service.

The January 2018 VA examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The examiner again specifically addressed the Veteran's in-service left-hand complaints when finding that the Veteran's left-hand disability was less likely than not incurred in service. Thus, the Board finds that the January 2018 VA examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2016); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Board also affords the VA examiner's January 2018 opinions, which are supported by a detailed rationale and medical knowledge, great probative value.

None of the competent medical evidence of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Thus, the Board finds the examiner's January 2018 opinions to be persuasive.

In sum, the Board finds that service connection for a residuals, left hand injury disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the most persuasive evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Low Back

The Veteran's service treatment records are negative for complaints or treatments of a low back disability.

The Veteran underwent a VA examination in January 2018. The diagnosis was a lumbosacral strain with an onset of 1991. The examiner opined that it was less likely than not that the Veteran's claimed low back disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that there was no evidence of a lumbar injury or treatment during the Veteran's service.

When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a low back disability is not warranted.

As there is a current low back disability, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).

As reflected above, the Veteran's service treatment records are negative for treatments or complaints related to a low back disability.

Additionally, the only medical opinions addressing the etiology of the low back disability weigh against the claim. As noted above, the VA examiner opined that it was less likely than not that the Veteran's low back disability was incurred in or caused by the claimed in-service event, injury or illness.

The Board affords the VA examiner's opinions, which are supported by a detailed rationale and medical knowledge, great probative value. In forming his opinion, the VA examiner specifically noted that the Veteran's service treatment records were negative for treatments or complaints related to a low back disability.

None of the competent medical evidence of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion
a low back disability.

Given that the most probative opinions are against a finding of a relationship between a low back disability and his service, the Board finds that service connection is not warranted.

In sum, the Board finds that service connection for a low back disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the most persuasive evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Bilateral Ankle

The appellant contends that the Veteran's bilateral ankle disabilities were secondary to his service-connected left knee disability.

Notably, the Veteran's service treatment records are negative for treatments or complaints of a bilateral ankle disability.

The Veteran underwent a VA examination in January 2018. The diagnosis was a history of a right ankle fracture and left ankle pain. The examiner opined that it was less likely than not that the Veterans' claimed bilateral ankle disabilities were caused or aggravated by his service-connected left knee disability. The examiner noted that the Veteran's bilateral ankle disabilities were separate entities from his left knee disability and not related to the left knee disability. The examiner instead opined that the Veteran's bilateral ankle disability was more likely due to his morbid obesity. There was also no evidence that the Veteran's left knee disability aggravated his bilateral ankle disability.

When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a bilateral ankle disability to include as secondary to a service-connected disability is not warranted.

As there is a current diagnosis of history of a right ankle fracture and left ankle pain, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).

The Board again notes that the Veteran's service treatment records are negative for complaints or treatments related to a bilateral ankle disability.

Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between bilateral ankle disabilities and the Veteran's service and the appellant has not presented or identified any such existing medical evidence or opinion.

The Board finds that the competent evidence of record, while showing the diagnosed bilateral ankle disabilities, does not demonstrate that the Veteran's bilateral ankle disabilities are related to the Veteran's service on a direct basis.

Regarding service connection on a secondary basis, the Board again notes that the appellant asserts that the Veteran's bilateral ankle disabilities were either caused or aggravated by his service-connected left knee disability.

However, the Board finds that the weight of the evidence is against a finding that the Veteran's bilateral ankle disabilities etiologically related to the Veteran's service-connected left knee disability. Notably, the only medical opinions addressing the etiology of the bilateral ankle disabilities on a secondary basis weigh against the claim. Specifically, the January 2018 VA examiner opined that it was less likely than not that the Veteran's bilateral ankle disabilities were caused or aggravated by the Veteran's service-connected left knee disability.

None of the competent medical evidence currently of record refutes these conclusions, and the appellant has not presented or identified any such existing medical evidence or opinion.

Consequently, entitlement to service connection for bilateral ankle disabilities is not warranted on a direct or secondary basis.

In sum, for the reasons and bases expressed above the Board finds that the most persuasive evidence is against the Veteran's claim of entitlement to service connection for bilateral ankle disabilities. The benefit-of-the-doub
addressing the etiology of the bilateral ankle disabilities on a secondary basis weigh against the claim. Specifically, the January 2018 VA examiner opined that it was less likely than not that the Veteran's bilateral ankle disabilities were caused or aggravated by the Veteran's service-connected left knee disability.

None of the competent medical evidence currently of record refutes these conclusions, and the appellant has not presented or identified any such existing medical evidence or opinion.

Consequently, entitlement to service connection for bilateral ankle disabilities is not warranted on a direct or secondary basis.

All Disabilities

The Board notes the appellant's contentions regarding the etiology of the claimed residuals, left hand injury, low back and bilateral ankle disabilities. To the extent that the appellant herself contends that a medical relationship exists between the Veteran's claimed residuals, left hand injury; low back and bilateral ankle disabilities and service, the Board acknowledges that the appellant is competent to testify as to her observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that residuals, left hand injury; low back and bilateral ankle disabilities are not disabilities subject to lay diagnosis as these diagnoses require medical training.

More significantly, the appellant and her representative do not have the medical expertise to provide an opinion regarding the claimed residuals, left hand injury, low back and bilateral ankle disabilities etiologies. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999).

In sum, for the reasons and bases expressed above the Board finds that the most persuasive evidence is against the Veteran's claims of entitlement to service connection. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b).

R. Bisignani

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board DeFrank, James

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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