Case 22042423

THERESA M. CATINO · 2022 · Case ID: 22042423

MIXED

Summary

The veteran, who served from June 2002 to August 2004, appeals multiple rating decisions from the VA Regional Office. The appeal concerns entitlement to service connection for a left upper extremity nerve disorder (carpal tunnel syndrome), increased ratings for depressive disorder and right knee conditions, and TDIU prior to December 23, 2015. The Board denied service connection for the left upper extremity nerve disorder, finding the evidence did not support a link to service, despite the veteran's contentions and some medical findings for the right wrist. The Board granted a 70 percent rating for depressive disorder for the entire appeal period, citing symptoms like suicidal ideation, social anxiety, and difficulty adapting to stress, which approximated the criteria for that rating. For the right knee, the Board granted a 20 percent rating for limited flexion and a 20 percent rating for instability for the entire appeal period, applying favorable criteria and considering pain and functional loss. An increased rating for right knee extension was denied. TDIU was granted prior to December 23, 2015, based on the combined impact of the psychiatric and knee conditions on the veteran's ability to maintain substantially gainful employment. The claim for degenerative arthritis of the cervical spine, secondary to right upper extremity carpal tunnel syndrome, was remanded for further development, including a new VA examination to clarify the etiology and potential aggravation by the service-connected carpal tunnel syndrome.

Special Benefit

TDIU

Docket No.

15-44 672

Full Decision Text

Citation Nr: 22042423
Decision Date: 07/26/22 Archive Date: 07/26/22

DOCKET NO. 15-44 672
DATE: July 26, 2022

ORDER

Entitlement to service connection for a nerve condition of the left upper extremity, to include left carpal tunnel syndrome, is denied.

For the entire appeal period, entitlement to a 70 percent rating, but no higher, for depressive disorder is granted.

For the entire appeal period, entitlement to a 20 percent rating for limited flexion manifested from status post right knee arthroscopic surgery (right knee condition) is granted.

For the entire appeal period, entitlement to a 20 percent rating for right knee instability, manifested from right knee condition, is granted.

From October 8, 2021, entitlement to a rating in excess of 40 percent for limited extension of right knee is denied.

Prior to December 23, 2015, entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

REMANDED

Entitlement to service connection for degenerative arthritis of the cervical spine (neck condition), to include as secondary to right upper extremity carpal tunnel syndrome, is remanded.

FINDINGS OF FACT

1. The weight of the evidence does not support that the Veteran incurred a left upper extremity nerve disorder due to his service.

2. For the entire appeal period, the signs and symptoms of the Veteran's service-connected depressive disorder have more nearly approximated occupational and social impairment with deficiencies in most areas, but has not exhibited total occupational and social impairment.

3. For the entire appeal period, the Veteran's right knee condition has been manifested by limited flexion to no less than 30 degrees.

4. For the entire appeal period, the Veteran's right knee condition was manifested by moderate instability.

5. From October 8, 2021, the Veteran's right knee condition was not manifested by limited extension to 45 degrees.

6. Prior to December 23, 2015, the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for service connection for nerve condition of left upper extremity are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. For the entire appeal period, the criteria for a 70 percent rating, but no higher, for a depressive disorder are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434.

3. For the entire appeal period, the criteria for a 20 percent rating for limited flexion manifested from status post right knee arthroscopic surgery (right knee condition) are met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260.

4. For the entire appeal period, the criteria for a 20 percent rating for right knee instability are met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257.

5. From October 8, 2021, the criteria for a rating in excess of 40 percent for limited extension of right knee are not met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261.

6. Prior to December 23, 2015, the criteria for a TDIU rating are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 2002 to August 2004.

This appeal to the Board of Veteran's Appeals (Board) arose from multiple rating decisions by the Department of Veteran Affairs (VA)
40, 4.45, 4.59, 4.71a, DC 5261.

6. Prior to December 23, 2015, the criteria for a TDIU rating are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 2002 to August 2004.

This appeal to the Board of Veteran's Appeals (Board) arose from multiple rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In August 2021, the Board granted service connection for right upper extremity carpal tunnel syndrome and remanded the current claims for further evidentiary development.

In a February 2022 rating action, the Agency of Original Jurisdiction (AOJ) granted increased ratings for the Veteran's psychiatric disorder and right knee condition during certain time periods. As the maximum benefit was not granted, the issue of entitlement to a higher evaluation remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993).

Also, in the February 2020 rating decision, the AOJ awarded entitlement to service connection for GERD. As the Veteran has not yet filed a NOD contesting either the effective date or the level of compensation assigned following the grant of service connection, this issue is no longer part of the current appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997).

Lastly, the Board sent the Veteran a letter requesting clarification of his POA. The letter advised that, if he did not respond within 30 days from the date of the letter, it will be determined that he wishes to continue unrepresented in this current appeal. See June 2022 BVA Letter. As he did not respond within the 30-day time period, as advised by the letter, the Veteran is considered unrepresented in regard to this current appeal.

Service Connection Nerve Disorder of Left Upper Extremity, To Include Carpel Tunnel Syndrome

A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a).

The Veteran seeks service connection for left carpel tunnel syndrome. The February 2021 VA examination only diagnosed carpel tunnel syndrome of the right hand. Examination of the left hand revealed normal findings. The Board notes that the Veteran has been diagnosed with left ulnar neuritis and left ulnar impingement. See May 2019 VA Examination Report. However, these diagnoses have been attributed to his left wrist tendonitis, which is not currently service-connected. Furthermore, the Veteran filed a claim for a left wrist condition, which was denied by the AOJ in July 2019. This denial has not been appealed.

Based on the evidence, the Board finds that the weight of evidence does not support that the Veteran has a nerve condition of the left upper extremity, however, diagnosed, that is related to service. The Board acknowledges that Veteran's contentions regarding experiencing symptoms during his service. While the service treatment records document complaints regarding right upper extremity numbness and tingling, they are absent any complaints, diagnosis, or treatment of a left upper extremity nerve condition. The Board does not determine that the Veteran's assertions, or absence of, lack credibility merely because those assertions are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the Board finds that the Veteran's assertions are contradicted by the medical reports of symptoms during his service. As the weight of the evidence does not support the development of a left upper extremity nerve condition due to service, service connection for this disability must be denied.

Increased Ratings

Depressive Disorder

DC 9434 (Major Depressive Disorder) is evaluated under the General Rating Formula for Mental Disorders. 38 C.F
are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the Board finds that the Veteran's assertions are contradicted by the medical reports of symptoms during his service. As the weight of the evidence does not support the development of a left upper extremity nerve condition due to service, service connection for this disability must be denied.

Increased Ratings

Depressive Disorder

DC 9434 (Major Depressive Disorder) is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 70 percent 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 a work like setting); and the inability to establish and maintain effective relationships. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that symptoms are "the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117.

Symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443.

Prior to October 8, 2021, the Veteran's psychiatric disorder was evaluated at 50 percent disabling. From October 8, 2021, it has been evaluated at 70 percent disabling. According to the relevant evidence of the record, in October 2011, the Veteran was checked into the emergency room due to feeling depressed and attempting to cut his wrists. The following day, his then-wife shared that he had been working more hours, which may have caused his stress. According to her, he had been saying that he did not feel like himself, did not like himself, and felt like a burden. The next day, he expressed that he regretted the suicidal behavior, and did not intend to kill himself, just wanted his wife to feel how badly he was feeling. The Veteran was discharged the next day. See February 2012 CAPRI.

The December 2011 VA examination reflected occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks due to the following symptoms: depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Veteran shared that he did not have any friends, explaining that he generally disliked people and got anxious around them. The examiner remarked that the Veteran had social anxiety associated with depression. On the mental status examination, the clinician observed the Veteran to be anxious. His underlying mood was depressed with a severely constricted affect and his insight was limited; and he experienced difficulties talking at times and almost stuttered on several occasions. In January 2016, he shared that he had not taken his medications since October or November 2015, and that without them he gets depressed, anxious, does
depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Veteran shared that he did not have any friends, explaining that he generally disliked people and got anxious around them. The examiner remarked that the Veteran had social anxiety associated with depression. On the mental status examination, the clinician observed the Veteran to be anxious. His underlying mood was depressed with a severely constricted affect and his insight was limited; and he experienced difficulties talking at times and almost stuttered on several occasions. In January 2016, he shared that he had not taken his medications since October or November 2015, and that without them he gets depressed, anxious, does not sleep well. He shared being too anxious to eat in the presence of others and speak to others. See March 2016 CAPRI.

The Board notes that a private Disability Benefits Questionnaire (DBQ) was submitted in August 2018. However, in this DBQ, the clinician indicated that the Veteran had an additional mental disorder diagnosis of PTSD. The clinician opined that it was possible to differentiate what symptoms were attributable to each diagnosis and determined that all of the Veteran's impairment was caused by his PTSD. In January 2010, the Board denied entitlement to service connection for PTSD. Based on the finding that all the impairment noted was due to PTSD, the Board cannot use this report to determine the severity of his depressive disorder.

On October 2021 VA examination, the Veteran experienced occupational and social impairment with reduced reliability and productivity. Other symptoms included anxiety, suspiciousness, panic attacks more than once a week, mild memory loss, and intermittent inability to perform daily activities of living, including maintenance of minimal personal hygiene. The examiner also stated that the Veteran had anger issues, was isolative and withdrawn. He experienced fatigue, loss of interest, decreased self-worth, and decreased motivation.

After a thorough consideration of the evidence of the record, the Board finds that, for the entire appeal period, including the period prior to October 8, 2021, the severity level of the Veteran's symptoms more nearly approximates the severity level contemplated by the 70 percent rating criteria. This rating contemplates suicidal ideation, and evidence shows his suicide attempt. Although he regretted the attempt, it still shows the intent and plan to harm himself. He had attempted suicide a prior time in 2003. He experiences constant anxiety being around and communicating with people, sharing that he does not have any friends. The severity and resulting impact of these issues depict an inability to establish and maintain effective relationships, which is contemplated by the 70 percent rating criteria. Examinations have also noted that he experiences difficulty in adapting to stressful circumstances (including work or worklike setting), which is also contemplated by the 70 percent rating criteria. Considering all of the evidence in its totality, the Board determines that the severity of his depressive disorder warrants the assignment of a 70 percent rating for the entire appeal period.

However, the Veteran's depressive disorder does not exhibit total occupational and social impairment, which is encompassed by the 100 percent rating criteria. Although he has experienced issues with memory, it was never to the level of forgetting his name, occupation or names of close relatives. During the evaluations, the Veteran's behavior has always been appropriate. His grooming and hygiene were appropriate. He was interactive and cooperative during examinations. The Veteran's thought process has always been noted to be normal. The Veteran has consistently denied delusions and hallucinations. Although he exhibits significant impairment in social relationships and activities, the evidence shows that the Veteran is currently remarried and goes out with his wife once a week. The severity level of the Veteran's social impairment is adequately contemplated by the 70 percent evaluation. The Board finds that a rating of 70 percent, but no higher, for the Veteran's depressive disorder is warranted for the entire period on appeal.

Right Knee

Prior to October 8, 2021, the Veteran's right knee disability was evaluated under DCs 5099-5019. From October 8, 2021, his right knee disability has been evaluated under DCs 5260 and 5261. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

DC 5019 evaluates bursitis, which essentially remained unchanged by the amendments. This DC instructs bursitis to be rated as limitation of motion of the affected parts the same was as deg
disability has been evaluated under DCs 5260 and 5261. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

DCs 5260 and 5261 were also unchanged by the amendments. Under DC 5260 (limitation of flexion), a noncompensable rating will be assigned for limitation of flexion of the knee to 60 degrees, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees, a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees, and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees.

Under Diagnostic Code 5261 (limitation of extension), a 10 percent disability rating is warranted for knee extension limited to 10 degrees, a 20 percent disability rating is assigned for extension limited to 15 degrees, a 30 percent disability rating is assigned for extension limited to 20 degrees, a 40 percent disability rating is assigned for extension limited to 30 degrees, and a 50 percent disability rating is assigned for extension limited to 45 degrees.

Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II.

Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). As such, in evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206.

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, this regulation is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court of Appeals for Veterans Claims has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id. (quoting 38 C.F.R. § 4.40).

On March 2015 VA examination, the Veteran reported flare-ups occurring three times weekly with increased pain. He described his knee giving out and falling approximately one month ago as a result. The flare-ups lasted for 12 day. When he experienced flare-ups, he could not walk on his knee. Range of motion (ROM) was within normal range. There was no evidence of pain on weight-bearing. The examination was not being conducted immediately after repetitive use over time or during flare-ups. The examiner was unable to say without mere speculation whether factors, such as pain or weakness, significantly limited functional ability during these conditions, explaining that the knee was not examined during these conditions. A meniscal condition was noted for the right knee, with frequent episodes of joint pain. The Veteran occasionally used a knee brace for support.

On the June 2015 VA examination, the Veteran provided the same description of his flare-ups. Regarding functional impairment, the Veteran shared that he was unable to use stairs due to pain and weakness. He was also limited in sitting and walking. He avoided driving due to pain aggravated when applying pressure on pedals. ROM was within normal limits. Pain was noted on flexion. There was evidence of pain on weight-bearing. Pain was present over medial aspect of mid right knee as well as anteriorly down to upper tibia on touch. His gait was guarded and antalgic. He experienced functional loss after performing repetitive use testing. Pain caused functional loss. There was no reduction in ROM after repetitive use testing. Again, because the conditions of repetitive use over time and flare-ups were not observed, the examiner could not determine if additional factors significantly limited functional ability. Contributing factors to his disability included weakened movement, instability of station, disturbance of locomotion, interference with sitting and standing.

On the October 2021 VA examination, the Veteran reported that his flare-ups occurred daily and were severe. They lasted for one to two days and were precipitated by attempting to walk. Functional impact was that he was not able to walk or use the stairs. He had a history of instability or recurrent subluxation of the knee. He had a history of effusion when he walked. Flexion was 75 degrees, extension was 30 degrees, with pain noted for both. Passive ROM was the same as active ROM. There was evidence of pain on active and passive motion, and it caused functional loss. There was no additional loss of function after repetitive use testing. He was being examined after repetitive use over time, but not during a flare-up. Pain and swelling significantly limited functional ability. Estimate flexion during these conditions was 30 degrees. Regarding instability, he did not have a ligament tear and he did not require a prescription for ambulation. The Veteran used a wheelchair and a brace constantly for instability of his knees. The wheelchair was for both knees, while the brace was for the right knee.

A disability rating greater than 60 percent is not available for the knee because such a rating would exceed the maximum 60 percent allowable under the "amputation rule." 38 C.F.R. § 4.25, 4.68, 4.71a, DCs 5162 to 5164. Under the "amputation rules" the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.6. Thus, when evaluating the severity of the Veteran's right knee condition, the Board must consider the limits outlined in this rule.

After a thorough consideration of the evidence of the record, the Board finds that, for the period prior to October 8, 2021, he is entitled to a 20 percent rating for limited flexion under DC 5260. The Board is aware that during that time his ROM was within normal range. However, during the time, the Veteran endorsed increased pain limiting his ability to walk. In June 2015, pain was noted on flexion, and it caused functional loss. The examiner also noted that right knee pain had worsened "moderately." Thus, the Board finds that he is entitled to a 20 percent rating for limited and painful flexion. However, he is not entitled to 30 percent rating for any period. Even when considering the Deluca factors and flare-ups, his limited flexion has not ever approximated 15 degrees, which is contemplated by the maximum 30 percent rating.

From October 8, 2021, the Veteran is in receipt of a 40 percent rating for limited extension under DC 5261. Prior to that time, the evidence does not show that the Veteran experienced any painful or limited extension, even when considering limitations during flare-ups and other contributing factors. From October 8, 2021, the Board finds that the Veteran's extension is adequately contemplated by the current 40 percent rating assigned. Even considering flare-ups and repetitive use, his extension does not approximate a limitation to 15 degrees, which is contemplated by the maximum 50 percent rating.

The Board has considered whether an evaluation under DC 5256 (ankylosis) was more appropriate. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (the ankylosis requirement in 38 C.F.R. § 4.71a can be met with evidence of functional equivalent of ankylosis during a flare). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). While the Veteran experiences difficulty moving his knee, his limitation does not exhibit his joint being immobilized or "stuck" in a particular degree of flexion. Therefore, the Board finds that his ratings under DC 5260 and 5261 are more indicative of his symptoms pertaining to limitations in moving his knee.

The Board acknowledges the reports of instability of the right knee. Prior to the February 2021 amendments, DC 5257 provided ratings for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. From February 7, 2021, Diagnostic Code 5257 is evaluated under either recurrent subluxation or instability, or patellar instability, which require findings of either a ligament tear or sprain, or diagnosed condition involving the patellofemoral complex. The Board has considered whether the Veteran is entitled to a separate compensable rating under Diagnostic Code 5257 in accordance with both the old and new rating criteria. In this regard, the Board determines that the Veteran would receive a more favorable rating for his instability in accordance with the old rating criteria.

Based on the evidence, his symptoms are contemplative of moderate instability, which is rated at 20 percent disabling. He has experienced giving way of his knee, sharing that he fell as a result. He uses assistive devices for the instability of his knee. While the Veteran's instability causes significant impairment, a 30 percent rating is not warranted for severe instability. The Veteran's balance was not so severe that no effective function remained other than what would be equally well served by an amputation with prosthesis. Majority of the functional loss was due to pain, which is being contemplated by his ratings assigned under DCs 5260 and 5261. The Board acknowledges the October 2021 examination notation that states that he has severe recurrent subluxation of the right knee. However, from October 8, 2021, as the Veteran is in receipt of 20 percent rating under DC 5260, and 40 percent rating under DC 5261, the Board is prohibited from assigning a higher rating under DC 5257 because it would be violative of the amputation rule.

The Board has considered whether the Veteran would be entitled to separate ratings under other DCs evaluating the knee. The evidence does not show that the Veteran has any other impairments recognized under the other DCs evaluating the knee, such as impairment of the tibia or fibula, or genu recurvatum. Although a meniscal condition was noted, the only symptom associated with the condition is frequent episodes of joint pain. The Board also acknowledges the notation of recurrent effusion at the October 2021 VA examination. DCs 5260 and 5261 contemplate painful motion. Further, the effusion was described being present while walking. Therefore, those symptoms are being contemplated by DCs 5260 and 5261.

In summation, based on the evidence discussed above, the Veteran's right knee is entitled to a 20 percent rating for limited flexion and 20 percent rating for instability for the entire rating period on appeal.

TDIU Prior To December 23, 2015

The AOJ awarded a TDIU rating from December 23, 2015. The supporting basis the award from this date was that the Veteran met the schedular criteria from that time, and the evidence showed that his disabilities precluded him from obtaining and maintaining substantially gainful employment. Based on the above awards of increased ratings, the Veteran would meet the schedular criteria for a TDIU prior to December 23, 2015. It has been reported that February 2012 was the last time the Veteran was gainfully employed. See June 2018 VA Form 21-8940 (
20 percent rating for instability for the entire rating period on appeal.

TDIU Prior To December 23, 2015

The AOJ awarded a TDIU rating from December 23, 2015. The supporting basis the award from this date was that the Veteran met the schedular criteria from that time, and the evidence showed that his disabilities precluded him from obtaining and maintaining substantially gainful employment. Based on the above awards of increased ratings, the Veteran would meet the schedular criteria for a TDIU prior to December 23, 2015. It has been reported that February 2012 was the last time the Veteran was gainfully employed. See June 2018 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability).

After a thorough consideration of the evidence, the Board finds that the Veteran's service-connected conditions, in conjunction with his educational background and occupational history, prevent him from obtaining and maintaining substantially gainful employment. His right knee symptoms greatly impact his ability perform high physical labor, such as heavy lifting. The evidence also shows that his right knee may impact light physical labor, which would include prolonged sitting and standing. It has been noted that he experiences flare-ups when sitting for prolonged periods of time. Also, his psychiatric condition significantly impairs his ability to engage and work with others effectively and handle stress. He is easily irritable and isolative, as he experiences social anxiety. The AOJ noted these symptoms when granting the rating from December 23, 2015. In its totality, prior to December 23, 2015, these conditions significantly impact his ability to perform both the physical and mental acts required by employment. Accordingly, the Board finds that the criteria for entitlement to a TDIU prior to December 23, 2015, are met. A TDIU is, therefore, granted for the period prior to December 23, 2015.

REASONS FOR REMAND

Service connection for degenerative arthritis of the cervical spine, to include as secondary to carpal tunnel syndrome of right upper extremity

After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim for service connection for a cervical spine disability.

The February 2015 VA examination diagnosed degenerative joint disease of the Veteran's cervical spine. The examiner opined that it was less likely than not that the Veteran's condition was due to his service. The rationale provided was that the reported history regarding symptoms of numbness and tingling in the upper extremities was more consistent with compression syndrome of the superior thoracic aperture rather than cervical spine degenerative joint disease.

The Board finds that this opinion is insufficient in making a clear and informed determination regarding this matter. A thorough explanation needs to be provided regarding the differences between the two diagnoses, explaining why upper extremity numbness is not a sign or symptom of developing degenerative joint disease. Further, the Board acknowledges that the Veteran is service connected for right upper extremity carpal tunnel syndrome, which is a condition characteristic of numbness and tingling. As he has reported upper extremity symptoms in conjunction with his cervical spine condition, it should be determined whether his cervical spine condition is caused or aggravated by his service-connected right carpal tunnel syndrome. This matter is REMANDED for the following action:

1. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with his claims folder. If the records are unavailable, inform him of such and of the efforts made to obtain them. He should be notified that he may submit any such records himself. All efforts should be recorded in the claims folder.

2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any cervical spine disability he may have. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and/or examination, the VA examiner should opine:

(a) Diagnose any cervical spine disorder shown during the current appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record.

(b) For each diagnosis of a neck condition found to be present during the pendency of the appeal, is it at least as likely as not (50 percent or greater probability) that such disability was incurred in, caused by, or etiologically related to the Veteran's service? In rendering this opinion, the examiner must address the Veteran's reported symptoms of upper extremity numbness and tingling and explain the probability of these symptoms being related to the development of the Veteran's current neck condition.

(c) Also, is it at least as likely as not (a 50 percent
shown during the current appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record.

(c) Also, is it at least as likely as not (a 50 percent or greater probability) that any such diagnosed cervical spine disability was caused, or aggravated ((i.e., worsened beyond the natural progress), by the service-connected right upper extremity carpal tunnel syndrome? If his neck condition is deemed not to be due to, or aggravated by service-connected carpal tunnel syndrome, then the examiner should, if possible, identify the cause considered more likely and explain why that is so.

If the examiner determines that the Veteran's neck condition is aggravated by his carpal tunnel syndrome, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of neck condition is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [Causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation.]

The Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so.

A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case.

If the examiner cannot provide an opinion without resorting to mere speculation, a complete explanation stating why this is so should be provided. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that the limits of current medical knowledge in providing an answer to that particular question have been exhausted.

3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the issue remaining on appeal. If this benefit remains denied, furnish to the Veteran an appropriate supplemental statement of the case (SSOC). The Veteran should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.

No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for the scheduled VA examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment.

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Middleton, Syesa T.

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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