Citation Nr: 1750128 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 12-34 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a Baker's cyst, right knee. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for gout, right foot. 4. Entitlement to service connection for a disability manifested by protein in the urine. 5. Entitlement to service connection for myeloproliferative disorder. 6. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and major depressive disorder. 7. Entitlement to service connection for sleep apnea to include as secondary to PTSD. WITNESSES AT HEARING ON APPEAL Veteran and the Veteran's wife ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2012, February 2013 and February 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims file. In January 2015, the Board remanded the Veteran's claims for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU is not raised with the increased rating claim for PTSD. The record does not suggest that the Veteran cannot work due to his PTSD disability, as further explained below. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The issues of right knee baker's cyst, right knee disability, and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a myeloproliferative disability that is etiologically related to a disease, injury, or event which occurred in service. 2. The preponderance of the evidence is against finding that the Veteran has a right foot gout disability that is etiologically related to a disease, injury, or event which occurred in service. 3. The preponderance of the evidence is against finding that the Veteran has a protein in the urine disability that is etiologically related to a disease, injury, or event which occurred in service. 4. The service-connected PTSD manifested as occupational and social impairment, with deficiencies in most areas for the duration of the appeals period. CONCLUSIONS OF LAW 1. A myeloproliferative disability was not incurred in active service and is not etiologically related to service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 2. A right foot gout disability was not incurred in active service and is not etiologically related to service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 3. A protein in the urine disability was not incurred in active service and is not etiologically related to service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 4. The criteria for a rating of 70 percent for the service-connected PTSD have been met for the duration of the appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). See January 2012 and January 2013 VCAA letters which comply with the requirements. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STR) and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The Veteran was provided relevant VA examinations in February 2012, January 2013 and August 2015. The examiners took into account the Veteran's reported history, current symptoms, and review of the available private and VA treatment records. Therefore, the Board finds the examination reports to be thorough and complete and sufficient upon which to base a decision with regards to these claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria for Service Connection Pertinent VA law and regulations provide that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). Generally, this requires (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d). Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303(b). When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014). Myeloproliferative Disorder, Right Foot Gout, Protein in Urine The Veteran's STRs contain a narrative summary from a period of hospitalization from to June to July 1970. That document records a diagnosis of myeloproliferative disorder and notes the clinician's impression that the Veteran then had an early myeloproliferative disorder and would need further diagnostic studies and critical evaluation. In February 2012, the Veteran was afforded a VA examination in connection with his claim of service connection for a myeloproliferative disorder. The examiner noted the Veteran had several scanned labs showing normal white blood cell counts in March and October 2008 and also an elevated white blood cell count in October 2008. The examiner then stated that results of a complete blood count (CBC) conducted in January 2012, did show an elevated white blood cell count but that a repeat test conducted the day of the examination was normal. The examiner then stated that it could not be definitively stated that the Veteran had a myeloproliferative disorder based on the scattered lab values that were available for review. The Board notes that it is also the Veteran's contention that gout and protein in his urine are related to his myeloproliferative disorder. In support of his assertion, the Veteran has submitted several articles discussing symptoms and complications of myeloproliferative disorders in general and of polycythemia vera specifically. Two such complication of polycythemia vera are noted to be gout and kidney stones, and the evidence of record demonstrates that the Veteran does have gout. Indeed, his active medications list includes Allopurinol for the treatment of gout. Further, although proteinuria is, in essence, a laboratory finding, such finding may be indicative of an underlying disease or disorder. A review of the private medical evidence of record shows a past medical history of kidney stones and an assessment of acute renal failure in August 2011. The Veteran appeared for a VA examination in August 2015 for a clarifying opinion, as it was unclear whether the Veteran suffered from myeloproliferative disorder from the evidence of record. The examiner stated there was no evidence that the Veteran has ever been diagnosed with a myeloproliferative disorder or treated for such a disorder since discharge. The examiner noted review of blood tests of record since 2007 and noted they do not support past or ongoing myeloproliferative disorder. The examiner stated that current blood testing does not support the notion of a chronic myeloproliferative disorder. The examiner stated that no diagnosis of myeloproliferative disorder can be made at this time. To establish a right to compensation for a present disability on a direct basis, the Veteran must show the following Shedden elements: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). With respect to the crucial Shedden element (1), the weight of the evidence of record does not demonstrate that a myeloproliferative disability currently exists or has existed at any time during the course of the appeal. Because the Veteran does not have a myeloproliferative disability according to the competent medical evidence of record, the Board finds that service connection for this claim must be denied. The Board again notes that it is also the Veteran's contention that gout and protein in his urine are related to his myeloproliferative disorder. There is no evidence that gout and protein in the urine are otherwise related to service and the Veteran has not contended as such. The August 2015 VA examiner particularly addressed gout, noting that gout is not caused by an injury event or environmental exposure, rather, gout arthritis is an error in metabolism uric acid resulting from protein metabolism. The examiner noted that the Veteran had risk factors for gout which are not attributed to military service or environmental exposure during military service, including chronic thiazide diuretic use, kidney disease, hypertension, and a mother suspicious for undiagnosed gout arthritis. The sole evidence of record in support of the Veteran's myeloproliferative disorder, protein in the urine, and gout claimed disabilities is lay evidence. Notwithstanding, lay statements without competent evidence are insufficient in this case to establish the positive nexus required for service connection. The Board notes that the Veteran himself and his peers, through statements, are not by themselves competent to establish a connection between his myeloproliferative disorder, protein in the urine, and gout claimed disabilities and his service. The Veteran and his peers as lay people have not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses and opinions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the myeloproliferative disorder, protein in the urine, and gout claimed disabilities, and the benefit of the doubt doctrine is not for application. There is no competent medical evidence of record establishing any link between the Veteran's claimed myeloproliferative disorder, protein in the urine, and gout and his service. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. Legal Criteria for Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). 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 conclusion. Schafrath, 1 Vet. App. at 589. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). There is no evidence to support the finding of a staged rating in this case. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). Merits of the Increased Rating Claim The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. Notably, the term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The 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. Id. Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment. The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as follows (See 38 C.F.R. § 4.130, Diagnostic Code 9411): 30 percent: 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). 50 percent: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing effective work and social relationships. 70 percent: 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); inability to establish and maintain effective relationships. 100 Percent: 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. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 61 to 70 reflect 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect 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). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV for rating purposes). The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. In this case, VA treatment records dated January 2012 record that the Veteran has had suicidal thoughts. The Veteran appeared for a VA examination in January 2013. The diagnosis was PTSD chronic with associated depression. GAF score was 56, reflecting moderate symptoms. The Veteran reported generally good familial relationships and enjoying some hobbies. He reported reexperiencing traumatic events from Vietnam, avoidance, loss of interest, hypervigilance, difficulty concentrating, exaggerated startle response, mild memory loss, nightmares and difficulty relating to others. He reported irritability, sleep disturbance, and anxiety helped with medication. The examiner noted that the Veteran's PTSD symptoms are not such that he is incapable of securing and maintaining some type of gainful employment. In the September 2013 Substantive Appeal, the Veteran indicated he has experienced near constant panic or depression, impaired impulse control, and difficulty adapting to stressful circumstances. He stated his wife handles most of his affairs because he is unable to, he struggles with driving because of road rage, and he experiences obsessive rituals (i.e., hand washing obsessively) which interferes with employment. A December 2013 VA treatment note records severe PTSD only partially treated with medication. In November 2015, the Veteran indicated that he has always felt 50 percent rating was not indicative of his symptoms. He indicated he is occupationally impaired because he is not able to work with anyone but himself, hence his long-standing self-employment. He stated he has suicidal thoughts and obsessive rituals. The Veteran appeared for a VA examination in August 2015. The Veteran reported nightmares, isolative behavior, anxiety, irritability and road rage, and sleep disturbance. His speech was hesitant and slow, his affect was blunted, his mood was anxious and depressed, and concentration was impaired. The examiner stated that the Veteran would likely exhibit moderate impairment in an occupational setting. Giving the Veteran the benefit of the doubt, the Board finds the Veteran's PTSD symptoms have most closely corresponded with occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Throughout the appeals period, the Veteran has reported suicidal ideation; obsessional rituals which interfere with routine activities; affected speech; panic attacks and depression affecting the ability to function independently as he relies on his wife; impaired impulse control (such as unprovoked irritability with periods of violence) as exhibited by road rage; difficulty in adapting to stressful circumstances (including work or a work-like setting); and difficulty establishing and maintaining effective relationships, as he has worked self-employed due to inability to work with others and some family relationships have been strained, as noted in the June 2017 Board hearing. There is no evidence of total occupational and social impairment. The Veteran has not reported nor exhibited symptoms akin to 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. While the Veteran has reported and exhibited that his PTSD impairs his occupational and social life, he has not indicated that he is totally impaired in that regard. ORDER Service connection for gout, right foot is denied. Service connection for a disability manifested by protein in the urine is denied. Service connection for myeloproliferative disorder is denied. Entitlement to an evaluation of 70 percent, but not greater, for PTSD and major depressive disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Right Knee During the August 2015 VA examination, the VA examiner noted right knee baker's cyst and stated that associated with the claimed condition is degenerative arthritis, diagnosed on the right side in August 2015. The examiner later stated that no nexus can be made between the 2010 diagnosis (baker's cyst) and military service. An addendum opinion is required to address the diagnosis of right knee arthritis which the examiner stated is associated with the baker's cyst. The examiner is also asked to consider the Veteran's lay statements, made during the June 2017 Board hearing, that in-service truck driving negatively impacted his knees. Sleep Apnea During the June 2017 Board hearing, the Veteran's spouse stated her belief that the sleep apnea was caused by nightmares from PTSD. During a February 2014 VA exam, the examiner opined it is less likely than not that the sleep apnea is proximately due to or the result of service-connected PTSD. The examiner opined it is most likely that the Veteran's sleep apnea is due to obesity. The examiner stated that there is no medical documentation of a causal relationship between PTSD and obstructive sleep apnea (OSA). Notably, the examiner did not address aggravation. As such, an addendum opinion is required. Accordingly, the case is REMANDED for the following action: 1. Associate all outstanding VA treatment records with the claims file. All records/responses received must be associated with the electronic claims file. 2. Please send the claims file to the August 2015 VA examiner, if possible, for an addendum opinion in connection with the claims of service connection for a right knee disability, to include a Baker's cyst and arthritis. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner should opinion as to whether any currently diagnosed right knee disability, to include baker's cyst and arthritis, is at least as likely as not related to a either the Veteran's period of active military service. The examiner should address the contention that in-service truck driving negatively impacted the knees. Regardless of whether the examiner's opinion as to any question is favorable or negative, the examiner must provide support for his/her opinion(s). This includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion. 3. Please send the claims file to the February 2014 VA examiner, if possible, for an addendum opinion in connection with the claim of service connection for sleep apnea. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner should opinion as to whether it is at least as likely as not that PTSD caused or permanently aggravated the Veteran's sleep apnea. Regardless of whether the examiner's opinion as to any question is favorable or negative, the examiner must provide support for his/her opinion(s). This includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion. 4. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issues remaining on appeal. If a benefit sought on appeal is not granted, the Veteran must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs