Citation Nr: 1515425	
Decision Date: 04/09/15    Archive Date: 04/21/15

DOCKET NO.  11-15 102A	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for right knee disability.

2.  Entitlement to service connection for bilateral ankle disability.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to an initial evaluation in excess of 10 percent for left knee laxity.

5.  Entitlement to a rating in excess of 10 percent for postoperative neuroma of the left leg.

6.  Entitlement to an initial rating excess of 30 percent for posttraumatic stress disorder (PTSD) prior to April 3, 2014.

7.  Entitlement to an initial rating in excess of 70 percent for PTSD since April 3, 2014.


8.  Entitlement to an effective date for the assignment of a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU) prior to April 3, 2014.


REPRESENTATION

Appellant represented by:	Rebecca C. Patrick, Attorney 


ATTORNEY FOR THE BOARD

Suzie Gaston, Counsel


INTRODUCTION

The Veteran served on active duty from October 1962 to February 1967.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the San Juan, Puerto Rico and Winston-Salem, North Carolina, Regional Offices (RO).  By a rating action dated in December 2006, the San Juan RO denied the Veteran's claim for a rating in excess of 10 percent for neuroma of the left leg; the RO also denied the Veteran's claims of entitlement to service connection for bilateral knee and ankle disabilities.  The Veteran perfected a timely appeal as to that decision.  By a Decision Review Officer's (DRO) decision, dated in February 2009, the RO granted service connection for left knee laxity, and assigned a 10 percent disability rating, effective May 24, 2006.  Subsequently, in an October 2009 rating action, the Winton-Salem RO granted service connection for PTSD, evaluated as 10 percent disabling, effective April 15, 2009; however, that rating action denied the Veteran's claim of entitlement to service connection for hypertension.  

The Veteran appeared and offered testimony at a hearing before a Decision Review Officer (DRO) at the RO in August 2010.  A transcript of that hearing is of record.  A rating code sheet, dated in May 2011, indicates that the RO determined that the effective date of service connection for PTSD was October 3, 2008, and increased the evaluation for the Veteran's PTSD from 10 percent to 30 percent, effective October 3, 2008.  

In December 2011, the Board remanded the case for further evidentiary development.  The Appeals Management Center (AMC) completed the requested development and issued a supplemental statement of the case (SSOC) in August 2013.  By a DRO decision dated in April 2014, the RO increased the evaluation for the Veteran's PTSD from 30 percent to 70 percent, effective April 3, 2014.  That, however, was not the highest possible rating, so the appeal continues.  See AB v. Brown, 6 Vet. App. 35 (1993).  The RO also granted a TDIU, effective April 3, 2014.  The Veteran appealed the effective date of the grant of TDIU.  An SSOC was issued in May 2014.  Review of the record reflects substantial compliance with the Board's Remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

In a letter dated February 18, 2015, the representative requested a 9-day extension in which to submit additional argument or evidence.  On March 26, 2015, the Board granted the representative's request for a 9-day extension and so informed her and the Veteran, although it bears noting that the representative submitted additional argument in the interim.  No further argument or evidence was received during the 9-day extension.

This appeal was processed using the Virtual VA and VBMS paperless claims processing systems.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records.  






FINDINGS OF FACT

1.  The evidence is in relative equipoise as to whether the Veteran's current right knee disorder was proximately caused by his left leg disorder.  

2.  The evidence is in equipoise as to whether the Veteran's bilateral ankle disability was proximately caused by his service-connected neuroma of the left leg.  

3.  Hypertension was not manifested in service or in the first year following the Veteran's discharge from active duty, and hypertension is not otherwise etiologically related to service.  

4.  The Veteran's service-connected left knee disorder is manifested primarily by complaints of pain, but not by compensable limitation of motion, recurrent subluxation or moderate lateral instability, or by frequent episodes of effusion.  

5.  Entitlement to a higher rating for postoperative neuroma of the left leg could not be established without examination; the Veteran was scheduled for VA examination, but failed to report without good cause.  

6.  Prior to December 15, 2011, the Veteran's PTSD was manifested by symptoms of depression, anxiety, difficulty sleeping due to recurring nightmares, intrusive thoughts, anger outbursts, panic attacks, tearfulness, social isolation, difficulty with interpersonal relationships, and a Global Assessment of Functioning (GAF) score of 54, resulting in occupational and social impairment with reduced reliability and productivity. 

7.  The Veteran's PTSD since December 15, 2011, has been manifested by ongoing symptoms of depression, difficulty sleeping due to recurring nightmares, intrusive recollections, hypervigilance, panic attacks, anger outbursts, avoidance, obsessional and ritualistic behavior, social isolation, difficulty with interpersonal relationships, and Global Assessment of Functioning (GAF) scores of 45, resulting in deficiencies in most areas.  

8.  The Veteran became unemployable due to service-connected disability on December 15, 2011.  


CONCLUSIONS OF LAW

1.  Right knee disability is proximately due to or the result of the Veteran's service-connected neuroma of the left leg.  38 U.S.C.A. §§ 1101, 1110, 1131, 1154(b), 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2014).  

2.  Bilateral ankle disability is proximately due to or the result of the Veteran's service-connected neuroma of the left leg.  38 U.S.C.A. §§ 1101, 1110, 1131, 1154(b), 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303(d), 3.307, 3.309, 3.310 (2014).  

3.  The Veteran's hypertension is not the result of disease or injury incurred in or aggravated by active military service, nor may it be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.326, 3.655 (2014).  

4.  The criteria for an initial rating in excess of 10 percent for left knee laxity have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.40. 4.45, 4.71a, Diagnostic Code 5257 (2014).  

5.  The criteria for a rating in excess of 10 percent for postoperative neuroma of the left leg have not been met.  38 U.S.C.A. § 501 (West 2014); 38 C.F.R. § 3.655 (2014).  

6.  Resolving reasonable doubt in the Veteran's favor, the criteria for an initial rating of 50 percent for PTSD prior to December 15, 2011 have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2014). 

7.  The criteria for a rating of 70 percent, but no higher, for service-connected PTSD have been met from December 15, 2011.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2014).  

8.  The criteria for an effective date of December 15, 2011, but no earlier, for a grant of TDIU have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400, 4.16 (2014).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist.

 The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2014).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

In this case, VA satisfied its duty to notify by means of letters dated in June 2006, December 2008, July 2013, August 2013, and December 2013 from the RO to the Veteran which were issued prior to the RO decisions in December 2006, February 2009, October 2009, May 2011 and April 2014.  Additional letters were issued in May 2012, July 2013, and December 2013.  Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. 

The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify with respect to the issues decided herein.  

Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence.  It also appears that all obtainable evidence identified by the Veteran relative to the claims decided herein has been obtained and associated with the claims files, and that neither he nor his attorney has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of these claims.  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices.  

The Board is unaware of any outstanding evidence or information that has not already been requested.  The Veteran has been afforded VA examinations on the issues decided herein.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The examinations afforded the Veteran are adequate.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).  The examinations were conducted by a medical professional who reviewed the medical records, solicited history from the Veteran, examined the Veteran, and provided explanations for the conclusions reached.  

The record reflects that a VA peripheral nerves examination was scheduled in October 2010, but the Veteran failed to report to the examination without good cause.  Subsequently, neurological examinations and examinations for evaluation of his hypertension were scheduled in May 2012, June 2012, and October 2012, but the Veteran failed to report to the examinations without good cause.  

The provisions of 38 C.F.R. § 3.655 address the consequences of a veteran's failure to attend scheduled medical examinations.  That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken.  At (b) the regulation provides that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  

The Veteran's failure to attend the October 2012 VA examination without a showing of good cause constitutes a failure to cooperate in the development of his claims for service connection for a right knee disorder, service connection for a bilateral ankle disorder and service connection for hypertension, and has resulted in the Board's weighing the available evidence of record, absent any additional medical nexus opinion, in adjudicating his claims.  See 38 C.F.R. § 3.655.  

The duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Under VA regulations, it is incumbent upon the Veteran to submit to a VA examination if he is applying for, or in receipt of, VA compensation or pension benefits.  See Dusek v. Derwinski, 2 Vet. App. 519 (1992).  When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence.  

As the Veteran failed to report for his scheduled examination without a showing of good cause, the Board is to adjudicate the claim for service connection for hypertension, a bilateral ankle disorder, and a right knee disorder based on the evidence of record.  38 C.F.R. § 3.655.  

As noted above, where appropriate, the Veteran has been afforded examinations on the issues decided.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The reports reflect that the examiners solicited symptoms from the Veteran, examined the Veteran, and provided findings necessary to apply the pertinent regulatory criteria.  Therefore, these examinations are adequate.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA.  Therefore, no useful purpose would be served in remanding the issues decided herein for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran.  The Court has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  


II.  Factual background.

The service treatment records (STRs) show that the Veteran entered active duty in October 1962; the STRs do not reflect any elevated blood pressure readings or findings of hypertension.  At the entrance examination, conducted in September 1962, clinical evaluation of the lower extremities was normal.  The STRs indicate that the Veteran sustained an injury to the left leg in 1963 when it was caught between a small boat and a larger ship; he subsequently underwent excision of an osteoma and a neuroma.  Service records also show ongoing complaints of left knee pain.  In August 1963, the Veteran was seen for evaluation of right knee pain.  He was next seen in 1966 with complaints of pain in both knees.  In October 1966, the Veteran was found to have some laxness of the left cruciate ligament.  On the occasion of the separation examination in January 1967, clinical evaluation of the heart and lower extremities was normal, and the Veteran's blood pressure was 130/68.  

By a rating action in November 1971, service connection was granted for postoperative status, left fibular osteoma, benign; a 10 percent disability rating was assigned, effective August 10, 1971.  

The Veteran's claim of entitlement to service connection for a bilateral knee disorder, ankle disorder and nerve involvement was received in May 2006.  Submitted in support of the claim were diagnostic study reports from Triad Imaging, dated from February 2005 to March 2006.  An MRI of the right knee, performed in February 2005, revealed abnormal findings within the extensor compartment with mild patella site, moderate osteoarthritic changes of the patellofemoral compartment, proximal patellar tendorubs prepatellar subcutaneous edema; a small Baker's cyst; and minimal joint fluid; there was no convincing evidence of internal derangement.  An MRI of the left knee, performed in March 2006, revealed findings of subtle undersurface and free edge fraying of the postenor horn medial meniscus without a discrete meniscal tear or displaced fragment; early medial compartment chondromalacia; semimembraneous insertional tendinosis; advanced patellar cartilage disease, most pronounced along the lateral facet; and PCL laxity without convincing evidence for discrete cruciate ligament tear.  An MRI of the right ankle, performed in March 2006, revealed no convincing evidence of significant internal derangement; however, there was mild increased signal within the posterior tibial tendon at and below the medial malleolus which could be related to tendinosis or artifact; an MRI of the left ankle, also performed in March 2006, revealed no convincing evidence of significant internal derangement; however, there was modestly increased signal within the posterior tibial tendon at and below the medial malleolus which could be related to tendinosis or artifact.  

The Veteran was afforded a VA examination in October 2006.  At that time, it was noted that the Veteran was discovered to have an osteoma of this left fibula in October of 1966; he had some conservative treatment with injections etc. but continued to have symptoms.  In early 1970, he was thought to have a neuroma which developed at the site of the osteoma.  It was reported that the Veteran has undergone several resections of the osteoma in 1970 and 1971; he noted that, following each of the resections, he had pain and discomfort in the leg.  He noted also that following the second resection of the osteoma/neuroma in 1971, he had some numbness along the lateral aspect of the left foot extending down posterior to the lateral malleolus under the lateral malleolus along the lateral edge of the dorsal surface of the left foot to the proximal end of the left fifth metatarsal bone.  The veteran reported that he had pain with pressure over the area of the surgery and some numbness extending down into the area described.  The area described was about 3 cm in greatest width mostly 2 cm from the middle of the scar area down underneath the left lateral malleolus to the left foot.  

The Veteran related that any kind of activity, particularly weight bearing and putting pressure on the foot, caused him to have increased pain in the area of the posterolateral left calf where the neuroma/osteoma was removed.  He also stated that he was able to walk about 30 minutes before he needs to sit down.  The Veteran related that he did not use a cane brace or crutches; he noted that he had not used a cane since after the surgery in the 1970s.  The Veteran indicated that his main problem was going up and down stairs.  He denied any lock up or give way of his legs.  He explained that the ankles did not lock up or give way.  It was noted that the Veteran had been retired on disability for a variety of things including his knees and heart problems since 2002.  He was able to do light chores around the house without any significant problems, and had no problems with light housekeeping.  The examiner noted that review of the treatment notes from the Durham VA Medical Center reveal no mention of the removal of the neuroma or osteoma in the past several years.  

On examination, it was noted that there was a 10 cm scar which runs from the middle of the left calf on the lateral aspect down toward the lateral malleolus, ending just over the lateral malleolus.  The scar itself was barely visible and was nontender.  There was no elevation or depression of the scar.  The scar was not broken down in any place.  There was no loss of tissue under the scar except in the depression noted below which was about 2 cm up from the lower end of the scar.  There was no herniation or dehiscence of the scar.  The veteran had a depressed area at the site of the surgery that was approximately 9 cm above the lateral malleolus.  It was about 1 cm behind the lateral malleolus in location, about 2 cm in width, and 2 cm in length.  It was tender to deep palpation.  There was no evidence of any false motion or shortening of the leg.  There is no evidence of any malunion.  No drainage or edema was noted in the area.   The Veteran walked normally, and he had normal strength to flexion and extension at the ankle.  There was decreased perception of light touch extending from the top of the depression in a band about 2 cm in width down along the posterior aspect of the lateral malleolus down under the lateral malleolus extending out onto the dorsal surface of the left foot.  The Veteran was able to feel light touch in that area but it was markedly decreased from the remainder of the leg.  The muscle strength in the legs was normal.  The pertinent diagnosis was osteoma of the left fibula status post resection with the development of a postoperative neuroma, status post resection of the neuroma with residuals.   

Received in February 2007 were private treatment reports, dated from April 1977 to November 1985, reflecting treatment for unrelated disabilities.  Also received in February 2007 were VA progress notes dated from March 2002 to June 2004, which show that the Veteran received clinical attention and treatment for panic attacks caused by a psychiatric disorder, diagnosed as depression.  

Received in July 2007 were private treatment reports dated in January 1999; it was noted that the Veteran was seen for right knee problems similar to the left knee (buckling up).  Also received in July 2007 were VA progress notes dated from February 1992 to December 1998.  A September 1992 VA progress note reflects a blood pressure reading of 122/74.  In March 1994, he had a blood pressure reading of 140/84.  A December 1998 VA progress note reflects a blood pressure reading of 134/86; he was diagnosed with bilateral knee stress.  During a clinical visit in December 1998, the Veteran complained of bilateral knee and ankle pain, particularly after being on his feet for 6 to 8 hours.  Following an evaluation, the pertinent diagnosis was degenerative joint disease, probable left medial meniscus injury.  

Received in March 2008 were private treatment reports from January 1999 to March 2008, reflecting ongoing treatment for leg pain, bilateral knee and ankle pain.  In February 2005, the Veteran was diagnosed with right greater than left chondromalacia patella.  During a clinical visit in March 2008, the Veteran indicated that he had experienced numbness in the left ankle ever since the in-service accident in 1966.  The Veteran indicated that he has had chronic pain in the legs over the years, including pain in the knees with walking, and burning pain in his lower legs, ankles and feet bilaterally, which had been present for years.  Following an examination, the reported diagnoses were: Chronic knee pain bilateral possibly chondromalacia patellae 2 Chronic left calf pain. 

Of record is a medical report from Dr. Craig Bash, dated in September 2008, indicating that he reviewed the Veteran's records and conducted a 90 minute physical examination of the Veteran for the purpose of making a medical opinion concerning his bilateral ankle and knees, hypertension, lower extremities neuropathy, left sural nerve dysfunction and lower extremity varicose vein problems as they relate to his service.  Dr. Bash noted that the Veteran entered service fit for duty.  Dr. Bash opined that the Veteran should be service connected for hypertension, because he entered fit for duty; however, during service, he injured his legs in service and has an abnormal gait ever since and has therefore been unable to exercise.  Dr. Bash stated that it is well-known that patients with abnormal gaits and mobility problems are associated with cardiovascular disease as noted by Yekutiel in the following; he stated that results show a significant increased incidence of hypertension and ischemic heart disease among those with spinal cord injuries and among amputees.  Dr. Bash further noted that the Veteran now has hypertension in the 148/88 range even while on antihypertensive medications.  He stated that the records do not contain a more likely etiology for his hypertension other than his inability to exercise due to his service-induced bilateral leg injuries.  

Dr. Bash opined that the Veteran should be service-connected for his left and right knee injuries for the following reasons.  First, he explained that the Veteran entered service fit for duty; then, he injured his legs in service and has had an abnormal gait ever since.  He also noted that the Veteran's knees lock occasionally, and his records contain several entries documenting his lax knee ligaments.  Dr. Bash stated that it is well known that abnormal gaits and lax ligaments place abnormal forces across the knee joints which in turn cause these joints to fail at an accelerated rate.  Dr. Bash concluded that the Veteran's abnormal gait is the primary cause of his advanced degenerative ankle joint (left and right) arthritis (failure) because his records do not contain a more likely etiology for his right ankle dysfunction.  

Dr. Bash also opined that the Veteran should be service connected for his left and right ankle injury for the following reasons.  Again, he noted that the Veteran entered service fit for duty; then, he injured his legs in service and has had an abnormal gait ever since.  Dr. Bash stated that it is well known that abnormal gaits place abnormal forces across the ankle joints which in turn cause these joint to fail at an accelerated rate.  Dr. Bash further opined that the Veteran's abnormal gait is the primary cause of his advanced degenerative ankle joint (left and right) arthritis (failure) because his records do not contain a more likely etiology for his right ankle dysfunction.  

Received in October 2008 was a statement from the Veteran wherein he indicated that he was seeking to establish a claim for service connection for chronic anxiety, PTSD, and hypertension.  The Veteran indicated that he developed these conditions as a result of an incident that occurred in service.  The Veteran reported that on June 16 1966, he participated in the rescue of four men from the deck of a burning tanker in New York harbor.  In addition, a fifth person, who was badly burned was picked up by a Coast Guard patrol boat.  He related that, after the boat picked this person up, the helicopter he was in, removed this victim from the boat.  Sikorsky craft presented him with a Sikorsky craft Rescue Award and silver medal.  This incident resulted in the death of thirty-three persons their bodies were floating in the flaming sea.  The Veteran indicated that he currently suffers from nocturnal panic attacks anxiety and depression; and, he believes that these conditions have contributed to his developing hypertension.  

Received in November 2008 were VA progress notes dated from March 2003 to November 2008.  These records show that the Veteran received clinical attention and treatment for a psychiatric disorder, diagnosed as anxiety, PTSD/depression, degenerative joint disease of the ankles and knees, and coronary artery disease.  A primary care note dated in August 2003 reflects that the Veteran was instructed to take hypertension medications with small amount of water at usual time.  During a clinical visit in June 2007, it was noted that the Veteran felt that he had compensatory bilateral knee and ankle pain and altered gait related to leg pain.  It was noted that he had circumferential pain at knees and ankles of which ankles are worse.  He has been on Ibuprofen and Naprosyn in past which helped initially but then lost benefit; he was currently on Relafen 1000mg/d but can't tolerate higher doses.  Also takes at least Vicodin 1/d but can take 2-3/d on bad days Knee leg and ankle pain is aggravated by long standing walking stair climbing and is directly increased by the amount of time he is on his feet.  The Veteran indicated that he also experiences occasional locking of the knees.  The pertinent diagnoses were probable early osteoarthritis, bilateral ankles, possible osteochondroma excision from the left leg, complicated by incisional neuroma w/ excision x 2 followed by chronic pain; and bilateral knee pain, probable early osteoarthritis, consider old ligament injury, left knee.  

The Veteran was afforded a VA examination in February 2009, at which time he reported a history of his legs being trapped between two boats and noted that he has had continuous pain ever since the injury.  The Veteran indicated that he currently experienced pain and locking of both knees.  He stated that the knees lock when going up and down stairs; he stated that when walking in the yard his left ankle will roll over.  The Veteran related that both legs hurt worse with standing and sitting; he stated that he experiences less pain with walking as long as he is not going up an incline.  The Veteran reported that the pain in the left knee is located proximal to the knee cap and is a dull and constant pain; he described the severity as moderate.  The right knee has pain in the proximal knee ca and medial knee; he also described that pain as constant and dull of moderate severity.  The Veteran also reported flare ups of knee pain in both knees at least 2 to 3 times a week; he denied any limitation of motion with flare ups.  It was noted that the Veteran uses bilateral knee braces with removable hinges, and he uses a cane to walk.  He reported taking Relavin and Vicodin for bilateral knee and bilateral ankle pain.  The Veteran indicated that he is able to stand all day with has pain after a few minutes.  

On examination, it was noted that the Veteran had a normal and slow gait with the use of bilateral knee braces.  He had increased wear on the outer heel of both shoes.  Examination of the knees revealed no bony enlargement, no deformity and no tenderness.  Crepitation was noted in both knees.  No instability was noted in either knee.  Examination of the ankles was unremarkable; there was no bony enlargement, no deformity, and no tenderness.  Range of motion in the knees was from 0 degrees to 120 degrees.  He had no pain with movement.  There was a well healed left lateral lower extremity surgical scar status post excision of fibula neuroma 14 cm length by 0.5 cm width less than 5 percent total body and 0 percent exposed body with tenderness along the entire length of the scar. There was no adherence; texture was normal.  No ulceration, no breakdown of skin, no elevation or depression of scar, no underlying tissue loss, no inflammation or edema, and nokeloid formation was noted.  The Veteran had no functional impairment due to the scar.  The pertinent diagnoses were bilateral knee arthritic changes, left knee laxity, excised left fibula neuroma with residual left sural mononeuropathy, bilateral ankle arthritic changes, and well healed left lateral lower extremity surgical scar, status post excision of fibula neuroma 14 cm length by 0.5 cm width, left than 5 percent total body and 0% exposed body with tenderness along the entire length of the scar.  

The examiner noted that the STRs records show that the Veteran sustained an injury to his left leg in 1963 when this leg was caught between a small boat and a larger ship; and, a neuroma was subsequently excised.  She noted that these records do not contain a specific report of injury to either knee.  The examiner opined that the right knee arthritic changes are not caused by a result of or aggravated by military service, nor are they secondary to left knee injury; however, the examiner stated that the left knee laxity was caused by military service.  The examiner stated that the bilateral ankle arthritic changes were not caused by military, nor are the changes secondary to the bilateral knee disability.  The examiner explained that the STRs contain no mention of a bilateral ankle disability.  She noted that a March 1994 progress note documents complaints of left ankle weakness and constant dull ache; however, a December 1998 VA progress note documents normal bilateral ankles and an October 2006 MRI of the ankles revealed no evidence of internal derangement.  

The Veteran was afforded a VA psychiatric examination in April 2009; at that time, he stated that he began having difficulties in 1963.  Since that time, he has been anxious and gets easily upset.  The Veteran reported having episodes where he awakens at night and will be screaming; he noted that these episodes usually lasts until he can sort of gather himself together and realize that he is asleep.  He also reported episodes where he has a sense of smelling smoke even though there is no smoke present.  He stated that he has difficulty falling asleep every night due to disturbing dreams.  The Veteran reported that he used to have vivid nightmares but not anymore.  He reported having intrusive thoughts about the incident that occurred in his life.  The Veteran indicated that he is always anxious and somewhat on edge.  He is not hypervigilant.  He reported being impatient in crowds and being short-tempered.  He avoids talking about his experiences.  He was not currently seeing a psychiatrist, and he has had no inpatient psychiatric treatment as a civilian.  It was reported that the Veteran has not worked in twelve years; he stated that he quit working because of his physical condition.  The Veteran indicated that he does some chores around the house.  His physical health is fair.  He has a few friends and limited recreational and leisure pursuits.   

On examination, the Veteran was described as alert and cooperative; he was casually and appropriately dressed.  He was noted to be soft-spoken; he answered questions and volunteered information.  There were no loosened associations or flight of idea.  There were no bizarre motor movements or tics.  His mood was subdued and tearful at times.  His affect was appropriate.  He states he had some bad dreams, but no nightmares that he can recollect and some intrusive thoughts.  He has no homicidal or suicidal ideation or intent.  There was no impairment of thought processes or communication.  There were no delusions, hallucinations, ideas of reference or suspiciousness.  He was oriented time three.  His memory, both remote and recent, appeared to be adequate.  Insight and judgment appeared to be adequate as is his intellectual capacity.  The examiner noted that the Veteran did witness a traumatic event that included actual or threatened death or serious injury to himself and others, and he re-experiences this through dreams and intrusive thoughts.  He avoids things that remind him of the event.  He is not a very social person.  He feels somewhat distant from others.  He has a sleep disturbance.  He is short-tempered and always anxious.  These problems have interfered with social activities and cause distress.  The examiner concluded that the Veteran met the DSM-IV criteria for PTSD.  The pertinent diagnosis was PTSD; he was assigned a GAF score of 54.  The examiner stated that the Veteran had moderate and persistent symptoms of PTSD with no remissions.  He is not working because of physical condition.  He is anxious, somewhat short-tempered and stays to himself.  He has few friends.  He does go to church.  He has limited interests and takes some medication for relief.  The Veteran's psychiatric symptoms result in some impairment of employment and social functioning.  The examiner concluded that the Veteran's current condition of PTSD is not a continuation of the anxiety state which he was diagnosed as having three years previously.  

In an addendum to the April 2009 VA examination, dated in September 2009, the examiner stated that, as mentioned in the C and P examination in April 2009, the anxiety that he had in 1963 was separate from the PTSD that was diagnosed in the C and P examination.  The examiner opined that the anxiety that the Veteran had previously probably set him up to develop the PTSD; however it was a different diagnosis and it is based on a different circumstance.  He stated that it would be difficult to detect chronic anxiety from 1963 because of the nature of the PTSD symptoms.  The examiner stated that it is as least as likely that the anxiety that he had previously is not the same as his current diagnosis of PTSD.  According to numerous references in the chart, the PTSD is due to the traumatic incident that occurred while he was in the Coast Guard.  

Received in October 2009 were VA progress notes dated from March 2003 to July 2009, which show that the Veteran received clinical attention and treatment for osteoarthritis of the ankles and the knees; he also received evaluation and treatment for a psychiatric disorder, variously diagnosed as PTSD and depression.  In April 2006, it was noted that the Veteran presented for evaluation of panic attacks, depression and coronary artery disease; the assessment was anxiety/depression, and chronic knee and ankle pain.  

Received in August 2010 was a medical evaluation report from Dr. Bash, dated in April 2009, in response to the denial of the Veteran's claims based on the February 2009 VA examination.  Dr. Bash noted that the decision states that the recent VA exam states that the Veteran's right knee disability of pain locking and crepitus is not secondary to his longstanding left knee condition.  He stated that the VA examiner did not notice the Veteran's sick call treatment note of August 1963 concerning right knee contusions ace bandage and x-ray.  She just stated that his right knee was not directly due to service because no service records showed an injury; a statement which is incorrect.  Dr. Bash stated that the Veteran's right knee is directly related to the injury in service and secondarily to the left knee and interval abnormal gait.  He further noted that an abnormal gait is essential for micro-trauma which repeated multiple times, causes osteoarthritis.  

Dr. Bash observed that the decision also states that the Veteran's left and right ankle disabilities are not due to his longstanding abnormal gait because the VA examiner stated a similar conclusion in her report.  Dr. Bash maintained that while the VA examiner correctly documented left and right ankle arthritis, he stated that she is incorrect in her conclusion that the osteoarthritis of the ankle is not due to the longstanding abnormal gait because she failed to provide any medical theory or medical principle to support her opinion.  Dr. Bash noted that the VA examiner did not discuss his opinion concerning abnormal forces and the development of osteoarthritis; she also failed to discuss the Veteran's longstanding abnormal gait and did not provide an alternative reason for the Veteran's bilateral osteoarthritis at his relatively young age.  Dr. Bash maintained that the literature supports an association between trauma and the development of osteoarthritis.  (Helms Fundamentals of Skeletal Radiology 1995 p116) Helms Fundamentals of Skeletal Radiology 1995 pp 116 129 and in the absence of metabolic disease or bony dysplasia premature osteoarthntis is caused by trauma (Dahnert Radiology Review 3rel ed 1996 p 12) Dahnert Radiology Review 3rd ed/ 1996 p12).  

At his personal hearing in August 2010, the Veteran reported that he currently suffers from nocturnal panic attacks and anxiety.  The Veteran indicated that he was last examined in April 2009.  He has received medical treatment and medication for anxiety and depression; his treatment has also included going to physical therapy and counseling.  The Veteran stated that he currently wears braces on both knees; he noted that the braces keep the knees from giving out.  The Veteran noted that he was currently taking medication for arthritis in his knees and legs.  The Veteran reported that contrary to the VA examiner, Dr. Bash and Dr. Matthew Olin took the time to exam him; the examiner conducted the examination with him sitting in a chair the entire time.  It was noted that the STRs from 1966 refer to bilateral laxity of the cruciate ligaments.  The attorney further noted that there are two different service records that include injuries to the Veteran's right knee.  The Veteran reported that he started having problems in his left ankle after his surgery to remove the neuroma; they cut some nerves and ligaments and he lost strength in his left ankle.  It was argued that the medical evidence demonstrates that the Veteran had to change the way he walked; as a result, it changed his gait and placed a lot of stress on his ankles.  The Veteran indicated that he has constant pain from the scar tissue on his left leg as a result of the excision of the neuroma.  The Veteran's attorney argued that the most probable theory is that the problem with the ankles developed secondary to the service-connected left leg disorder.  The Veteran indicated that he is currently receiving social security benefits due in part of his service-connected disabilities.  

Submitted at the hearing was an undated medical statement from Dr. Huda Montemarano, indicating that he had reviewed the medical records, including the VA medical opinion and Dr. Bash's opinion and that he agreed with Dr. Bash's opinion.  Dr. Montemarano noted that the Veteran entered the Coast Guard with no orthopedic complaints; he subsequently sustained significant trauma in 1963 while on active duty followed by bilateral leg pain since the trauma which has never abated and has in fact worsened.  Dr. Montemarano further noted that the Veteran began also began to complain of left ankle pain after resection of an osteoid osteoma in 1966 (also during service-time) which also has worsened over time.  He has had multiple exams revealing bilateral ligamentous laxity of the knees, with the earliest being in 1966.  In 1992, he was found to have a left sural neuropathy.  Dr. Montemarano observed that the Veteran has not sustained significant trauma since his honorable discharge from service in 1967 and has no other reasonable explanation for his chronic disability.  He further noted that the Veteran had documented crepitus in both knees.  He agreed with Dr. Olin who stated that "It is quite obvious to me that Mr. (Veteran) sustained injuries to both of his knees in 1963... the knees have been abnormal since that time.  It is my opinion that his knee conditions both right and left are most likely caused as a result of the injury that he sustained in 1963."  Dr. Montemarano stated that although he respects the VA examiners credentials, neither her examination, her explanation, nor her experience has the depth or breadth of Dr. Bash Dr. Olin or himself.  

Received in May 2011 were VA progress notes dated from August 2003 to October 2009, reflecting ongoing treatment for knees, ankles and depression.  A March 2004 VA progress note reflects an assessment of coronary artery disease, PTSD/depression, and knee pain.  In August 2005, the Veteran was seen for evaluation of coronary artery disease, hyperlipidemia and panic attacks; following an evaluation, he was diagnosed with anxiety and hypertension.  

Of record is the report of an examination report from Dr. Patrick B. Mullen, dated December 15, 2011.  He noted that the Veteran functioned well in the military until June 1966 when he was involved in a harbor fire in the New York Harbor when two oil tankers collided that the whole harbor was filled with fire.  The Veteran was part of a helicopter rescue team that hovered above the flames, attempting to rescue sailors from the flaming ships.  The Veteran reportedly saw men seriously burned and some died of affixiation.  It was noted that, ever since the horrible accident, the Veteran has not been able to get those images out of his mind; he has had nightmares and experienced nocturnal panic, waking up with shortness of breath, rapid heart rate and a sense of arousal.  He has also had ruminative thought, jumpiness, depression, decreased energy and intrusive thoughts.  The Veteran also reported outbursts of anger.  It was noted that the Veteran last worked in 1997; he stated that his work slowed down to the point where he could not concentrate well, he could not finish jobs easily, and he stayed in pain from his heart and legs.  He was also tormented by the symptoms of PTSD.  

On mental status examination, the examiner noted that psychomotor speed was slow.  The Veteran had some mild agitation.  His affect was depressed.  He was tearful at times during the interview.  He seemed anxious when reporting the events of the harbor fire.  His hygiene and dress were normal, but the Veteran sweats excessively.  He reported that he only took baths when he has to see somebody; otherwise, he may go two or three days without bathing.  The Veteran was oriented.  His memory was intact.  He seemed very compulsive in his thinking.  He denied any hallucinations.  He seemed obsessive and ruminative and depressed throughout the interview.  The pertinent diagnosis was PTSD, chronic, severe, with anxiety and depression, and arthritis of the knees, secondary to coast guard injury.  The Veteran was assigned a GAF score of 45, and the examiner stated that the symptoms are severe enough to prevent the Veteran from working.  

The record indicates that the Veteran was scheduled for VA examination for evaluation of hypertension, and neurological disorders in May 2012; however, he asked to have his exam cancelled because his older brother is having major surgery and he has to help take care of him.  It was noted that the Veteran is aware of the procedure of requesting another 2507 to be reissued.  Subsequently, in June 2012, it was noted that the Veteran related that there was a conflict between the AMC and RO concerning his claim, and he was advised by his attorney not to attend any exams until all evidence submitted to RO and AMC has been reviewed and settled.  

Of record is a formal finding of unavailability, dated in July 2013, wherein it was determined that all procedures to obtain records for the Veteran's Social Security Administration medical records had been correctly followed.  It was noted that evidence of written and telephonic efforts to obtain the records is in the file.  All efforts to obtain the needed military information have been exhausted further attempts are futile and that, based on these facts the record is not available.  

The Veteran was afforded a VA examination in April 2014.  At that time, the Veteran reported that aside from going to church, he does not socialize.  It was noted that there had been no changes in educational history since last exam, no changes in occupational history since last exam, no changes in family mental health since last exam, no legal/behavioral history since last exam, and no substance abuse history since last exam.  Current psychiatric medications include Citalopram and Clonazepam.  The examiner noted that the Veteran's PTSD was caused by witnessing a traumatic event as it occurred to others.  As a result, he experiences recurrent distressing dreams in which the content and/or effect of the dream is related to the traumatic event; marked psychological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event; avoids distressing memories, thoughts, or feelings about or closely associated with the traumatic event; intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s); marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic events; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings.); hypervigilance; exaggerated startle response; and sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).   The Veteran's symptoms of PTSD include: depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events, impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and obsessional rituals which interfere with routine activities.  The pertinent diagnosis is PTSD; the examiner stated that the Veteran's PTSD results in occupational and social impairment with reduced reliability and productivity.  

Received in August 2014 were treatment reports from several providers, including Guilford Orthopaedic and Sports Medicine Center and Greensboro Orthopaedics, dated from January 2005 to November 2009.  In January 2005, the Veteran was seen for a follow up evaluation of his bilateral knee and ankle pain.  It was noted that the Veteran had had pain for several years and his right knee seemed to be the worst.  The assessment was bilateral knee pain, right greater than left, and bilateral ankle pain.  In March 2009, the Veteran was seen by Dr. Matthew Olin for evaluation of his knees; he complained of bilateral knee and bilateral ankle discomfort.  The Veteran related that he sustained an injury in 1963 when a 23-foot boat pinned both his right and left knees against a shorter railing, resulting in a twisting type mechanism to the knees.  He stated that he continues to have problems with both knees.  Following a physical examination of the knees, the assessment was bilateral knee conditions that are consistent with a patellofemoral chondromalacia, questions the significance of meniscal pathology, nonetheless, bilateral knee involvement.  Dr. Olin stated that it is quite obvious that the Veteran sustained injuries to both his knees in 1963.  He has multiple documented evaluation of his knees and obvious findings that the knees have been abnormal since the time of the injury.  Just as any other traumatic incident at any point in one man's life, whether or not it is a sporting or traumatic injury, it directly relates to potential long term sequel that he is experiencing.  Dr. Olin opined that the Veteran's knee conditions, both the right and the left, are most likely caused by the injury that he sustained in 1963.  Among the records is a treatment report from Dr. John J. Griffin, at Eagle Internal Medicine, dated in November 2009, indicating that the Veteran has not been under the care of a psychiatrist, but he has been diagnosed with PTSD; he as taking Clonazepam and Citalopram.  

III.  Legal Analysis-Service Connection.

Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C. §§ 1110, 1131.  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"--the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Holton v. Shinseki, 557 F.3d 1362 (2009).  

Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  This rule does not mean that any manifestation in service will permit service connection.  To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  

Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.  

Service connection may also be established for disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a); see Harder v. Brown, 5 Vet. App. 183, 187 (1993).  

Prior to October 10, 2006, the provisions of 38 C.F.R. § 3.310 directed, in pertinent part, that disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  The Court clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  

There has been an amendment to the provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.  Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen v. Brown, 7 Vet. App. 439 (1995) (which allowed for secondary service connection on an aggravation basis), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made.  

As to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).  

The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21. Vet. App. 303 (2007).  

When reviewing medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  However, the Board may not reject medical opinions based on its own medical judgment.  Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).  In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  A medical opinion may not be discounted solely because the examiner did not review the claims file.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009).  

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102.  

A.  Service-connection -Right Knee.

In weighing the Veteran's statements, treatment records, reports of VA examination, and the medical opinions of record, the Board concludes that the evidence supports an award of service connection for a right knee disorder.  The record reflects that the Veteran has a current right knee disorder, variously diagnosed as patellofemoral chondromalacia, degenerative joint disease of the knees, and osteoarthritis.  He has been treated for a right knee disorder for several years.  It is noteworthy that the Veteran received treatment on several occasions during service for right knee pain.  

The Board recognizes that there is conflicting evidence of record.  On the one hand, the February 2009 VA examiner has opined that the examiner opined that the right knee arthritic changes are not caused by a result of or aggravated by military service, nor are they secondary to left knee injury.  On the other hand, in a statement dated in September 2008, Dr. Bash opined that the Veteran should be service-connected for his left and right knee injuries for the following reasons.  First, he explained that the Veteran entered service fit for duty; then, he injured his legs in service and has had an abnormal gait ever since.  He also noted that the Veteran's knees lock occasionally, and his records contain several entries documenting his lax knee ligaments.  Dr. Bash stated that it is well known that abnormal gaits and lax ligaments place abnormal forces across the knee joints which in turn causes these joints to fail at an accelerated rate.  In a subsequent statement dated in April 2009, Dr. Bash noted that the recent VA exam (NP Roach) states that the Veteran's right knee disability of pain locking and crepitus is not secondary to his longstanding left knee condition.  He stated that the VA examiner did not notice the Veteran's sick call treatment note of August 1963 concerning right knee contusions ace bandage and x-ray.  She just stated that his right knee was not directly due to service because no service records showed an injury; a statement which is incorrect.  Dr. Bash stated that the Veteran's right knee is directly related to the injury in service and secondarily to the left knee and interval abnormal gait.  He further noted that an abnormal gait is essential for micro-trauma which, repeated multiple times, causes osteoarthritis.  Moreover, in March 2009, Dr. Olin opined that the Veteran's knee conditions, both the right and the left, are most likely caused by the injury that he sustained in 1963.  

Given the foregoing, the Board finds that the evidence is in relative equipoise on the question of whether the Veteran's right knee disorder is related to the events in service, including the service-connected neuroma of the left leg.  Under such circumstances, the benefit of the doubt is given to the Veteran.  38 U.S.C.A. § 5107(b).  Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that the evidence supports a grant of entitlement to service connection for a right knee disorder.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

B.  Bilateral ankle disorder.

The Veteran contends that he has a bilateral ankle disorder that developed as a result of an incident in service.  Alternatively, he maintains that his bilateral ankle disorder developed as the result of his service-connected left knee disorder and that secondary service connection should therefore be granted.  

After a careful review of the evidence of record, the Board finds that service connection for a bilateral ankle disorder is warranted.  In this regard, the Board notes that there is conflicting evidence concerning the relationship between the current right ankle disorder and the Veteran's service-connected left leg disorder.  Significantly, following a VA examination in February 2009, a VA examiner opined that there was no link between the Veteran's bilateral ankle disorder.   

In contrast, in a September 2008 medical statement, Dr. Bash stated that it is well known that abnormal gaits place abnormal forces across the ankle joints which in turn cause these joint to fail at an accelerated rate.  Dr. Bash further opined that the Veteran's abnormal gait is the primary cause of his advanced degenerative ankle joint (left and right) arthritis (failure) because his records do not contain a more likely etiology for his right ankle dysfunction.  

In another VA medical opinion, dated in May 2010, a VA physician examined the Veteran, reviewed the claims file, and concluded that the bilateral osteoarthritis was not caused by or contributed to the treatment for bilateral knee pain while in the service. 

Clearly, the opinions offered by the VA examiner and the private physician are conflicting.  Each provided an explanation for the opinion that was provided.  The medical opinions appear to have been based upon review of the record and thoughtful analysis of the Veteran's entire history and current medical condition.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  The Board finds, therefore, that the evidence is in equipoise.  Thus, with resolution of doubt in the Veteran's favor, the Board concludes service connection for a bilateral ankle disorder as secondary to the Veteran's neuroma of the left leg is warranted.  

When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); see also 38 C.F.R. § 3.102 (2013).  In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  The Court pointed out in Gilbert that under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the Veteran prevails.  In view of the foregoing, the Board finds that the evidence is, at least, in equipoise.  Because the evidence is in equipoise, and since the Veteran is supposed to be afforded the benefit-of-the-doubt, the Board concludes that the Veteran's bilateral ankle disorder is secondary to his service-connected neuroma of the left leg.  Therefore, service connection can be granted on a secondary basis, and as such, secondary service connection is warranted in this case.  

C.  Service connection-Hypertension.

For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm.  (millimeters of mercury) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm.  Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).  

In the present case, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hypertension.  It is not in dispute that the Veteran currently receives treatment for, and has a diagnosis of, hypertension.  However, as noted above, his STRs are completely silent for any clinical findings or treatment for hypertension.  Furthermore, on service separation examination, in January 1967, his heart and vascular system were normal on clinical evaluation and his blood pressure was 130/68.  There is no evidence that hypertension was manifested in service or during the first post service year.  The earliest clinical record showing that the Veteran had hypertension is dated in August 2005, some 38 years after his retirement from service.  Consequently, service connection for hypertension on the basis that it was became manifest in service and persisted, or on a chronic disease presumptive basis (under 38 U.S.C.A. § 1112) is not warranted.  What remains for consideration is whether or not in the absence of a diagnosis in service and/or post service continuity of symptoms, the Veteran's hypertension may nonetheless somehow otherwise be related to his service.  

In this regard, submitted in support of the Veteran's claim is a medical statement from Dr. Bash, who opined that the Veteran should be service connected for hypertension, because he entered fit for duty; however, during service, he injured his legs in service and has an abnormal gait ever since and has therefore been unable to exercise.  Dr. Bash stated that it is well-known that patients with abnormal gaits and mobility problems are associated with cardiovascular disease as noted by Yekutiel in the following; he stated that results show a significant increased incidence of hypertension and ischemic heart disease among those with spinal cord injuries and among amputees.  Dr. Bash further noted that the Veteran now has hypertension in the 148/88 range even while on antihypertensive medications.  He stated that the records do not contain a more likely etiology for his hypertension other than his inability to exercise due to his service-induced bilateral leg injuries.  

Although the opinion is by a medical professional competent to provide it, the Board finds it to be of less than persuasive probative value because, by itself, it is conclusory and does not include any explanation of rationale.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  Further, as the STRs do not show any elevated blood pressure readings or finding of hypertension, Dr. Bash's opinion appears to be based on an inaccurate factual premise and lacks probative value.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding a medical opinion based on incorrect factual premise is not probative).  

As is noted above, the Board sought (by December 2011 remand for a VA examination) to assist the Veteran in establishing the etiology of his current hypertension.  Initially, in May 2012, the Veteran explained that he would not be able to attend the examination because he had to care for his brother who was ill; he subsequently failed to report for two examinations in June 2012 and October 2012 without giving cause.  A governing regulation provides that when (as here) a veteran fails to report for an examination  scheduled in connection with an original compensation claim, the claim will be decided based on the evidence of record.  38 C.F.R. § 3.655. As such evidence does not show that there is a nexus between any current hypertension and the Veteran's service, the evidence is inadequate to substantiate his claim.  

Significantly, the matter of a nexus between current hypertension and remote service is a medical question.  Hypertension is not a disability capable of lay observation; its presence is established by diagnostic measurements.  The Veteran's own statements relating his current hypertension to service are not competent evidence in the matter.  He is a layperson with no medical training; does not cite to any medical texts or treatises that support his theory of causation; and he has not submitted a probative medical opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007.  In light of the foregoing, the preponderance of the evidence is against this claim; therefore the benefit of the doubt doctrine does not apply.  The claim must be denied.  


IV.  Legal Analysis-Increased rating.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2014).  38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition.  The provisions of 38 C.F.R. § 4.2 require that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the Veteran's working or seeking work. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating is to be assigned.  

The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In this case, the Board has concluded that varied evaluations are not warranted over the course of the claim period in question.  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45.  

The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) id not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered.  However, the Board also notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  

The Board notes that the intent of the rating 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.  38 C.F.R. § 4.59.  

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.  

A.  Initial rating in excess of 10 percent for left knee laxity.

The Veteran contends that his left knee disability is more disabling than currently evaluated.  

As noted above, this case was remanded by the Board in December 2011 primarily for a VA examination to evaluate the current level of severity of the Veteran's service-connected left knee disorder.  Although an examination was scheduled, the Veteran failed to report for this examination.  

The action to be taken in instances where a Veteran fails to report for a VA examination depends on if the examination was scheduled in connection with an initial rating claim or a claim for an increase.  An initial rating claim is an original compensation claim under 38 C.F.R. § 3.655(b), so where a veteran fails to report for an examination, as here, the case shall be rated on the evidence of record.  Fenderson v. West, 12 Vet. App. 119, 125 (1999); Turk v. Peake, 21 Vet. App. 565, 568-70 (2008).  

The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  

The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  See 38 C.F.R. § 4.45.  After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a).  

The Veteran's left knee disability is evaluated utilizing the criteria found at Diagnostic Code 5257, other impairment of the knee.  38 C.F.R. § 4.71a.  Under Diagnostic Code 5257, a 10 percent rating is for application when there is slight recurrent subluxation or lateral instability.  A 20 percent rating is for application when there is moderate recurrent subluxation or lateral instability.  A 30 percent rating is for application when there is severe recurrent subluxation or lateral instability.  

Here, in light of the relevant medical evidence reported above, the Board finds that the Veteran's left knee laxity is, and has been, no worse than slight, which warrants the currently assigned 10 percent rating, but does not warrant a higher rating.  On examination in February 2009, the Veteran complained of pain and locking of the knees.  He stated that the knees lock when going up and down stairs; he stated that when walking in the yard his left ankle will roll over.  The Veteran reported that the pain in the left knee is located proximal to the knee cap and is a dull and constant pain; he described the severity as moderate.  The Veteran also reported flare ups of knee pain in both knees at least 2 to 3 times a week; he denied any limitation of motion with flare ups.  It was noted that the Veteran uses bilateral knee braces with removable hinges, and he uses a cane to walk.  On examination, it was noted that the Veteran had a normal and slow gait with the use of bilateral knee braces.  He had increased wear on the outer heel of both shoes.  Examination of the knees revealed no bony enlargement, no deformity and no tenderness.  Crepitation was noted in both knees.  No instability was noted in either knee.  Range of motion in the knees was from 0 degrees to 120 degrees.  He had no pain with movement.  The Veteran had no functional impairment due to the scar.  The pertinent diagnoses were bilateral knee arthritic changes, and left knee laxity.  In light of the foregoing, the Board finds that the evidence does not warrant a rating higher than the currently assigned 10 percent assigned for slight disability under Diagnostic Code 5257.  

The Board has considered whether another rating code used for evaluating disabilities of the knee is more appropriate than the one used by the RO, but finds none.  Diagnostic Code 5256 is inapt because there is no evidence of ankylosing of the knee.  Diagnostic Codes 5258 and 5259 are inapt because there is no evidence of semilunar cartilage involvement.  Diagnostic Codes 5260 and 5261 rate knee disabilities based on limitation of motion, which, as noted above, is not a disability for which the Veteran is service connected.  Diagnostic Code 5262 is inapt because the evidence does not show any related impairment of the tibia and fibula.  Finally Diagnostic Code 5263 is inapt because it involves hyperextension of the knee, which has not been shown as part of the service-connected disability.  

Additional factors that could provide a basis for an increase have also been considered.  However, it is not shown that the Veteran has any functional loss beyond that currently compensated.  38 C.F.R. §§ 4.40, 4.45, Deluca, supra.  

Given the lack of evidence showing unusual disability with respect to the left knee that is not contemplated by the rating schedule, the Board also concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted.  See 38 C.F.R. § 3.321(b) (2013).  

In sum, based on the all of the relevant medical evidence of record, the Board finds that the Veteran's left knee disability picture more nearly approximates the criteria required for the currently assigned 10 percent rating, and that a higher rating is not warranted at any time since the initial effective date of May 24, 2009.  38 C.F.R. § 4.7.  

B.  Neuroma of the left leg, postoperative.

As noted above, the Veteran failed to report to his scheduled VA examination for his neuroma of the left leg.  

The claims file contains documents observing that proper notice of this examination was provided to the Veteran's last known address prior to the examination.  There is no evidence that any notification letter was returned as undeliverable.  There is no evidence that the Veteran subsequently contacted the VA Medical Clinic (VAMC) to indicate that he was unable to keep the scheduled October 2012 examination or to request that it be rescheduled.  As the Veteran failed to report to a VA examination scheduled in connection with a claim for an increased evaluation, the claim is denied.  See 38 C.F.R. § 3.655(b).  

C.  Increased rating-PTSD.

The Veteran's PTSD has been assigned a 30 percent rating under Diagnostic Code 9411, 38 C.F.R. § 4.130 (2013).  Under that code, a 30 percent evaluation is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  

A 50 percent evaluation is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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 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 an inability to establish and maintain effective relationships.  

A 100 percent evaluation is warranted for 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; and memory loss for names of close relatives, own occupation, or own name.  

The Global Assessment of Functioning score is a score reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994).  A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A score of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers).  A GAF score of 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships.  A score of 71 to 80 indicates that, if symptoms are present at all, they are transient and expectable reactions to psychosocial stressors with no more than slight impairment in social and occupational functioning.  See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995).  

The Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one general rating formula for mental disorders.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.130.  By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive.  The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV.  See 38 C.F.R. § 4.126 (2014).  If the evidence demonstrates that a claimant 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.  Mauerhan v. Principi, 16 Vet. App. 436 (1992).  

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; and Gilbert v. Derwinski, 1Vet. App. 49, 55 (1990).  

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a) (West 2014).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2014).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.  

A.  Initial rating in excess of 30 percent.

After review of the evidentiary record, the Board finds that the evidence of record, during the period prior to December 15, 2011, supports a 50 percent evaluation.  Based on the evidence of record, the Board finds the Veteran's service-connected PTSD is manifested by occupational and social impairment due to symptoms of depression, anxiety, difficulty sleeping due to recurring nightmares, intrusive thoughts, anger outbursts, panic attacks, tearfulness, and social isolation.  The Board notes that the GAF score provided during the course of the appeal was a 54, which is indicative of moderate social and occupational impairment like that contemplated by the 50 percent rating.  See Richard v. Brown, 9 Vet. App. 266 (1996).  While severe symptoms are absent from the medical evidence, the Veteran's symptoms appear to be at least moderate.  It is noteworthy that, following the VA examination in April 2009, the examiner stated that the Veteran had moderate and persistent symptoms of PTSD with no remissions.  He is not working because of physical condition.  He is anxious, somewhat short-tempered and stays to himself.  He has few friends.  He does go to church.  He has limited interests and takes some medication for relief.  The Veteran's psychiatric symptoms result in some impairment of employment and social functioning.  With resolution of reasonable doubt in the Veteran's favor, a 50 percent rating is warranted.  

When all the evidence is assembled VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  After resolving all reasonable doubt in his favor, the Board finds entitlement to an increased (50 percent) rating, but no higher, is warranted for the period prior to December 15, 2011.  38 C.F.R. §§ 4.3, 4.7.  

A rating higher than 50 percent is not warranted for the period prior to December 15, 2011.  According to the report of the VA psychiatric examination in April 2009, the Veteran's speech was logical and related, with no indication of hallucinations, delusions or formal thought disorder. There was no flight of ideas, no loosening of associations.  No obsessions or compulsions were elicited.  No obsessions or compulsions were elicited.  He did not have any suicidal or homicidal ideations.  As noted above, the symptoms required for a 70 percent rating include suicidal ideation, near-continuous panic, neglect of personal hygiene and spatial disorientation.  There is no probative evidence of occupational and social impairment with reduced reliability and productivity, deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, or 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, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name.  Taking the evidence all together, the preponderance of it is against a rating higher than 50 percent.  38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2014).  

For all the foregoing reasons, the Board finds that the Veteran's service-connected PTSD warrants an initial rating of 50 percent, but no higher, for the period prior to December 15, 2011.  38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013).  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim for a rating higher than assigned herein, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

B.  Rating excess of 70 percent prior to April 3, 2014.

After carefully considering the evidence of record in light of the rating criteria provided above, the Board finds the Veteran's service-connected PTSD warrants a 70 percent disability rating, but no higher, from December 15, 2011.  Significantly, the pertinent evidence of record during this period shows that the Veteran's service-connected PTSD was manifested by chronic depression, difficulty sleeping due to recurring nightmares about Vietnam, intrusive thoughts and chronic panic attacks, related to the inservice incident in 1963.  Other symptoms include chronic anxiety, hypervigilance, anger outbursts, and social isolation.  The evidence reflects that the Veteran's PTSD symptoms were of such severity and persistence that they caused deficiencies in most areas, including his mood, family relations, and work.  Significantly, in a medical examination report from Dr. Patrick Mullen, dated December 15, 2011, the examiner noted that psychomotor speed was slow.  The Veteran had some mild agitation.  His affect was depressed.  He was tearful at times during the interview.  He seemed anxious when reporting the events of the harbor fire.  His hygiene and dress were normal, but the Veteran sweats excessively.  He reported that he only took baths when he has to see somebody; otherwise, he may go two or three days without bathing.  The Veteran was oriented.  His memory was intact.  He seemed very compulsive in his thinking.  He denied any hallucinations.  He seemed obsessive and ruminative and depressed throughout the interview.  The pertinent diagnosis was PTSD, chronic, severe, with anxiety and depression, and arthritis of the knees, secondary to coast guard injury.  The Veteran was assigned a GAF score of 45, and the examiner stated that the symptoms are severe enough to prevent the Veteran from working.  

Following the VA examination in April 2014, the examiner noted that the Veteran's symptoms of PTSD include: depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events, impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and obsessional rituals which interfere with routine activities.  The pertinent diagnosis is PTSD; the examiner stated that the Veteran's PTSD results in occupational and social impairment with reduced reliability and productivity.  

In light of the foregoing, the Board finds that, during the period in question, the Veteran demonstrated an inability to establish and maintain effective relationships of the type and degree that warrants a 70 percent rating for PTSD.  In this case, the Veteran's GAF score was reported to be 45; a score of this severity reflects major impairment in several areas such as work, family relations, judgment, thinking or mood.  Consequently, he demonstrates occupational and social impairment with deficiencies in most areas; thus, the schedular criteria for a 70 percent evaluation have been approximated.  

The evidence does not, however, show that the veteran has symptoms that meet or approximate the criteria for a total schedular rating.  Although the Veteran has persistent intrusive recollections, the mental status reports on psychological evaluation and examination did not find hallucinations or delusions, or give the impression that the intrusive recollections were hallucinatory in character or as disabling as persistent delusions or hallucinations.  He does not manifest or nearly manifest the behavioral elements of 100 percent disability.  There is no documented instance of grossly inappropriate behavior.  There is no report of any episodes of inability to perform activities of daily living.  There is no clinical evidence of actual disorientation to time and place.  There is no documentation of loss of memory of the names of close relatives, his occupation, or of his own name.  In essence, total occupational and social impairment is not shown.  Taking the evidence all together, the preponderance of it is against a rating higher than 70 percent for any time after December 15, 2011.  38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013).  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Indeed, the Board finds that the Veteran's PTSD symptoms, to specifically include his avoidance of social interaction, difficulty adapting to stressful social and work situations, and significant difficulty in establishing and maintaining effective work and family relationships, do not exceed the level of disability contemplated by the 70 percent rating.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.7 (2013).  The Veteran does not have such symptoms as contemplated by a 100 percent evaluation.  See Mauerhan, supra.  

Finally, the disability picture is not so exceptional or unusual as to warrant a referral for an evaluation on an extraschedular basis, either during the period prior to or from December 11, 2011.  Although the Veteran is currently unemployed, the assignment of the ratings described above appropriately addresses occupational impairment due to the Veteran's PTSD for the periods in question.  Further, there is no competent evidence that the Veteran's service-connected PTSD has resulted in frequent hospitalizations.  As noted above, his symptoms are those specifically contemplated by the schedular criteria.  The Board is therefore not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1) (2013).  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  



V.  Legal Analysis-TDIU Effective Date

The assignment of an effective date for TDIU benefits is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if application is received within one year from such date, otherwise, the date of receipt of the claim.  38 U.S.C.A. § 5110(b) (2) (West 2002); 38 C.F.R. § 3.400(o) (2) (2013); see Hurd v. West, 13 Vet. App. 449 (2000).  

A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16(a) (2013).  

The Veteran is service connected for PTSD, now rated 50 percent from October 3, 2008 and 70 percent disabling from December 15, 2011; status post resection, osteoma of the left fibula, benign, with residuals, rated as 10 percent, effective August 10, 1971; neuroma of the left leg, post-operative associated with status post resection, osteoma of the left fibula, rated as 10 percent disabling, effective January 30, 1973; and left knee laxity, rated as 10 percent disabling, effective May 24, 2006.  Therefore, the Veteran met the percentage prerequisites for entitlement to TDIU under 38 C.F.R. § 4.16(a) (one disability rated at least 60 percent, or a combined rating of 70 percent or more, with one service-connected disability rated at 40 percent or more).  The Board must now consider when his service-connected disability rendered him unable to obtain and retain substantial gainful employment.  See 38 C.F.R. §§ 3.321, 4.16(b).  

Here, the RO granted entitlement to individual employability in its April 2014 rating decision.  This decision was based on an April 3, 2014 VA examination report which found the Veteran to have occupational and social impairment with reduced reliability and productivity due to his PTSD and physical limitations due to his left knee and leg conditions.  The findings of the examiners establish that he experiences total occupational impairment due to his service-connected disabilities.  However, in a previous medical statement from Dr. Patrick Mullen, dated December 15, 2011, he stated that examiner stated that the symptoms are severe enough to prevent the Veteran from working.  Consequently, the Board finds that the Veteran was effectively unemployable as of the date he became unable to work as declared by Dr. Mullen on December 15, 2011.  Therefore, the Board will conclude that the appropriate effective date of TDIU in this matter is December 15, 2011.  Given such evidence, the Board finds that, this provides a sufficient basis for an earlier effective date of December 15, 2011 for the award of a TDIU.  While the records indicate that the Veteran had stopped working in 1997, none of the medical evidence of record establishes that he was unemployable due to service-connected disabilities until December 2011.  





















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ORDER

Service connection for right knee disability is granted.  

Service connection for bilateral ankle disability is granted.  

Service connection for hypertension is denied.  

Entitlement to an initial evaluation in excess of 10 percent for left knee laxity is denied.  

Entitlement to a rating in excess of 10 percent for postoperative neuroma of the left leg is denied.  

An initial rating of 50 percent evaluation for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits.  

A 70 percent evaluation for PTSD from December 15, 2011 is granted, subject to the law and regulations governing the payment of monetary benefits.  

A rating in excess of 70 percent for PTSD from December 15, 2011 is denied.  

Entitlement to an effective date of December 15, 2011, for an award of TDIU is granted, subject to regulations applicable to the payment of monetary benefits.



____________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs