Citation Nr: 0810693 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-39 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the right knee, to include as secondary to right ankle degenerative joint disease. 2. Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from August 1967 to August 1969. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Milwaukee, Wisconsin, (hereinafter RO). It is noted that the veteran initially requested a RO hearing but later agreed to the alternative of an informal hearing conference with a Decision Review Officer; this conference was held in February 2006. FINDINGS OF FACT 1. There is no competent evidence linking degenerative joint disease in the right knee to in-service symptomatology or pathology or to service-connected residuals of degenerative joint disease in the right ankle. 2. PTSD does not result in occupational or social impairment with reduced reliability or productivity due to such symptoms as a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of long-term memory; impaired judgment; or impaired abstract thinking. CONCLUSIONS OF LAW 1. Degenerative joint disease of the right knee was not incurred in or aggravated by service, may not be presumed to have been incurred in service and is not proximately due to or the result of right ankle degenerative joint disease. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). 2. The criteria for an initial rating in excess of 30 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §4.130, Diagnostic Code (DC) 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. First with regard to the duty to notify, prior to initial adjudication, a letter dated in December 2004 advised the claimant of the information necessary to substantiate his claims for service connection. He was also informed of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was also told to provide any relevant evidence or information in her possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Service connection for PTSD was granted by a June 2005 rating decision, and the veteran has appealed the initial 30 rating assigned for this disability. While the December 2004 letter did not notify the veteran of the information needed to support a claim for a higher rating for PTSD, the Federal Circuit held that 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the rating assigned by a RO for an award of benefits. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this regard, once a decision has been made awarding service connection and an effective date and rating for the award assigned, § 5103(a) notice has served its purpose, as the claim has already been substantiated. See Sutton v. Nicholson, 20 Vet. App. 419 (2006). The extent to which notification provisions of the VCAA extend to a "downstream" claim, such as the claim for a higher initial rating for PTSD in the instant case following the grant of service connection, see McCutcheon v. Principi, 17 Vet. App. 559 (2004), is somewhat unclear. To the extent that such notice may be required, a March 2006 letter provided the veteran with VCAA notice regarding disability rating and effective date matters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although this letter was not sent until after the initial adjudication of the claim in June 2005, it was followed by readjudication and the issuance of a supplemental statement of the case in September 2006. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). A discussion of whether sufficient notice has been provided for an increased compensation claim is not necessary because the Vazquez- Flores notice requirements apply to a claim for increase and not to an initial rating claim as is the case here. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). There is otherwise no indication that any effort by the RO adversely affected the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Therefore, the Board finds that there was no prejudicial error; notification errors, if any, did not affect the essential fairness of the adjudication. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As such, the Board finds that the duty to notify has been satisfied. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained the service medical records and VA medical examinations pertinent to the claims were afforded as will be discussed below. Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria/Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the 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(b) (West 2002); 38 C.F.R. § 3.102 (2006). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. A. Service Connection for Right Knee Degenerative Arthritis Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.304. There are some disabilities, including arthritis, for which service connection may be presumed if the disorder is manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown as such in service, 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). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from a service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, also warrants compensation. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary condition is considered a part of the original disability. Id. The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). With the above criteria in mind, the relevant facts will be summarized. A September 1968 service medical record showed the veteran complaining about pain in his right knee. A tender area was noted in the medial portion of the patella. It was noted that there was no obvious infection. The July 1969 separation examination did not reflect a right knee disability and the veteran did not report having any knee problems on a medical history collected at that time. After service, an examination of the right knee in May 2005 resulted in diagnoses to include mild degenerative joint disease in the right knee. It was reported at that time that the veteran had a work-related fracture of the right distal tibia with pins. The examiner noted the degenerative joint disease in the right knee and fracture of the tibia were not related to, caused by or aggravated by military service. At a February 2006 informal hearing conference, the veteran contended that his right knee condition was the result of his service-connected right ankle disorder, and he was afforded a VA examination in June 2006 to in part determine whether such a relationship existed. At that time, the veteran reported that his knee began hurting him during his service in Vietnam. It was reported that there was no specific knee injury in service and no knee pain at the time of service separation. The veteran told the examiner that he fractured his right tibia at his place of employment, after service. He underwent an internal fixation and hardware was later removed after an infection. The veteran stated that he was on antibiotics for many weeks thereafter. He reported that following his post-service injury in 2001, he has had increasing right knee pain. Following the examination, the diagnosis in pertinent part was degenerative joint disease of the right knee, and the examiner concluded as follows: It is my opinion that the veteran's right knee condition of degenerative joint disease is not caused or aggravated beyond [its] normal progression by the veteran's right ankle disability. There is no specific injury to the right knee joint noted while in service. The veteran reports intermittent right knee symptoms. He reports that [his] right knee pain became worse following his work related injury in 2001. The veteran does have [an] antalgic gate [sic] however it do[e]s not decrease his pace of ambulation and [it] is mild. A review of the remaining evidence of record does not otherwise reveal any competent medical evidence linking degenerative arthritis of the right knee to service or the service-connected right ankle degenerative arthritis. As for the veteran's own assertions that his right knee degenerative arthritis is related to service or his service connected right ankle disorder, such assertions cannot be used to establish a claim as a layperson is not qualified to render a medical opinion regarding the etiology of disorders and disabilities. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992) (finding that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, and in light of the negative medical opinions set forth above, the Board finds that service connection for right knee degenerative arthritis cannot be granted. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim for service connection for a right knee degenerative arthritis, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Increased Rating for PTSD Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board notes that the claim for an increased ratings for at issue herein are based on the assignment of initial ratings for these conditions following the initial award of service connection for each condition. The United States Court of Appeals for Veterans Claims (Court) held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson v. West, 12 Vet. App. 119 (1999); Francisco, 7 Vet. App. at 58. Occupational and social impairment due to psychiatric disorders, such as PTSD, 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) warrants a 30 percent disability rating. 38 C.F.R. § 4.130, DC 9411. Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships warrants a 50 percent disability rating. Id. 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 worklike setting); inability to establish and maintain effective relationships warrants a 70 percent rating. Id. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name warrants a 100 percent rating. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). It is further noted that the nomenclature employed in the portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as " DSM-IV"). 38 C.F.R. § 4.130. The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and a 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. The higher the score, the better the functioning of the individual. For instance, GAF scores ranging between 61 and 70 are warranted when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). As indicated, service connection for PTSD was granted by a June 2005 rating decision. A 30 percent was assigned for this disability effective July 19, 2004. Evidence before the adjudicators at that time included reports from a May 2005 VA examination, at which time the veteran reported that he had not had a full night's sleep since he returned from Vietnam in 1969. He also described an exaggerated startle response, nightmares and intrusive thoughts of combat. Upon mental status examination in May 2005, it was noted that the veteran's PTSD symptoms did not appear to impact personal functioning. His mood was euthymic and no change in the veteran's mood was noted when he discussed details of his Vietnam combat. The veteran responded to questions in a rational, coherent and organized manner with no indications of obsessions, compulsions or phobias. There was no evidence of delusions, hallucinations, psychotic symptoms or a thought disorder. He was oriented to all spheres and no evidence or complaints of memory loss. The veteran's memory for immediate, recent, and remote events was specifically noted to be "quite good." Insight and judgment were grossly intact. He reported that he sleeps between four and five hours each night and continues to have problems with sleep onset and maintenance. In summary, the examiner stated the veteran had mild symptoms of PTSD, to include re-experiencing military combat in the form of recurrent and intrusive recollections, avoidance of stimuli associated with combat, a mild sleep disorder and exaggerated startle responses. His GAF score following the examination was 70. The most recent pertinent clinical evidence is contained in reports from a May 2006 VA psychiatric examination. The reports from this examination reflect review of the claims file by the examiner, to include the reports from the May 2005 VA examination set forth above. The veteran reported that he had not received any psychiatric inpatient or outpatient treatment since the May 2005 examination, but reported that he still has problems with sleeping. He indicated that he had "no problems during the day," but did report difficulty with loud noises, flashbacks and nightmares. The veteran denied having any mental health problems associated with working except being bothered by loud noises and he indicated that he had a good relationship with his adult children and an adequate degree and quality of social relationships. Overall, the veteran described a good psychosocial functional status and quality of life. Upon mental status examination in May 2006, the veteran demonstrated no impairment of thought processes or communication and no delusions or hallucinations. Eye contact and interaction were within normal limits and the veteran was oriented to person, place and time. With the exception of "some forgetfulness," the veteran denied any significant memory loss or impairment. He also denied obsessive or ritualistic behaviors, panic attacks, depression, anxiety or impaired impulse control. Speech was within normal limits. The veteran reported that he slept 3.5 to 4 hours a night but that he slept sometimes during the day and indicated that his energy was "pretty good at times." It was the examiner's assessment that the veteran's PTSD symptoms were mild, that any vocational or industrial limitations due to PTSD were "very mild" and that the veteran's GAF score was 65. Applying the pertinent criteria to the facts set forth above, the evidence of record does not show that PTSD is manifested by such symptomatology as a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of long-term memory; disturbances of motivation and mood, or impaired abstract thinking. Symptoms of PTSD have been consistently characterized as "mild," and the impact of the veteran's PTSD upon employment has been described as "very mild." The Board therefore finds that the service-connected psychiatric symptomatology does not meet the schedular criteria for increased compensation, to include on the basis of a "staged" rating or ratings. 38 C.F.R. § 4.130, DC 9411. Accordingly, an evaluation in excess of 30 percent disabling for the veteran's service- connected PTSD is not warranted at any time subsequent to the effective date of the initial rating, July 19, 2004. See 38 C.F.R. § 3.400 (2007). In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2007). The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Floyd v. Brown, 9 Vet. App. 88, 94 (1996). In this case, however, the schedular evaluation is not inadequate. Ratings in excess of that currently assigned are provided for certain manifestations of the veteran's service- connected residuals, but those manifestations are not present in this case. Moreover, the Board finds no evidence of an exceptional disability picture. The veteran has not required frequent hospitalizations due to his PTSD, and his service-connected residuals have not shown functional limitation beyond that contemplated by the 30 percent rating currently assigned. Accordingly, referral of this decision for extraschedular consideration is not indicated. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim for a higher initial rating for his service-connected PTSD, the doctrine is not for application. Gilbert, 1 Vet. App. at 49 (1990). ORDER Entitlement to service connection for degenerative joint disease of the right knee, to include as secondary to right ankle degenerative joint disease, is denied. Entitlement to an initial rating in excess of 30 percent for PTSD is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs