Citation Nr: 18141184 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 12-02 325 DATE: October 9, 2018 ORDER Entitlement to service connection for a personality disorder, to include passive dependent, mixed, atypical, schizotypal borderline and/or explosive personality disorder, is denied. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is denied. REMANDED Entitlement to an acquired psychiatric disability, to include posttraumatic stress disorder, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has a personality disorder; a personality disorder may not be service connected as a matter of law. 2. During the rating period on appeal, the Veteran’s left knee disability has had flexion greater than 100 degrees, extension which is not limited to more than 5 degrees, and no lateral instability, recurrent subluxation, dislocated similar cartilage, or removal of semilunar cartilage. CONCLUSIONS OF LAW 1. The criteria for service connection for a personality disorder, to include passive dependent, schizotypal borderline, mixed, atypical, and/or explosive, have not been met. 38 C.F.R. 3.303, 4.9. 2. The criteria for a rating in excess of 10 percent for left knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.71a Diagnostic Code 5260-5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1979 to December 1982. These matters come before the Board of Veterans’ Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Roanoke, Virginia. These matters were previously before the Board in March 2017 when they were remanded for VA examinations. The Board finds that Social Security Administration (SSA) records are not needed to adjudicate the claims of entitlement to service connection for a personality disorder and entitlement to an increased rating for left knee degenerative joint disease (DJD). As noted below, a personality disorder is not a disorder for which service connected may be granted; thus, records for such are not necessary. In addition, the Veteran has not asserted, and the record (to include the SSA determination records) does not reflect, that SSA would be probative as to his left knee. Legal Criteria Service Connection Congenital or developmental defects such as personality disorders and mental deficiency are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127 Rating Disabilities 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. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that 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).   Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Entitlement to service connection for a personality disorder The Veteran has been diagnosed with one or more personality disorders, variously identified as atypical, mixed, explosive, passive dependent, schizotypal, and/or borderline. As noted above, personality disorders are not “diseases” or “injuries” within the meaning of applicable legislation. In essence, as a matter of law, they are not disabilities for VA purposes. As such, service connection cannot be granted for the Veteran’s personality disorder. Sabonis v. Brown, 6 Vet. App 426 (1994). (Service connection may be granted if the evidence shows that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon a personality disorder. In the present case, entitlement to service connection for an acquired psychiatric disability is remanded below.) Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee Additional reference to the Veteran’s left knee disability are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal The Veteran’s left knee disability is rated as noncompensable prior to November 24, 2008, and as 10 percent disabling thereafter under DC 5260-5010. In September 2009, the Veteran filed a claim for an increased rating. DC 5260 provides a noncompensable rating when flexion is limited to 60 degrees or more. A 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent evaluation is for leg flexion limited to 30 degrees. A 30 percent evaluation is for leg flexion limited to 15 degrees. A December 2008/January 2009 VA examination report reflects that the Veteran reported pain, stiffness, weakness, swelling, decreased speed of joint motion, and giving way but denied incoordination and instability. He reported flare-us when weather changes, he is on his feet too long, or his is lifting and carrying heavy objects. Flare-ups were relieved with medication and rest. He reported flare-ups occur every two to three weeks and which last “hours” each time. The Veteran also reported that he is unable to walk more than a few yards and is unable to stand for more than a few minutes. He reported the intermittent, but frequent use, of a brace and crutches. Upon examination in December 2008, the Veteran had crepitus, effusion, mild pain with varus and valgus movement, and mild tenderness to palpation around the joint line. There was no instability. The Veteran had flexion to 115 degrees and full extension. Despite objective evidence of pain on repetitive motion, there was no additional limitation. The examiner found that the Veteran’s disability had a moderate effect on chores and exercise, a severe effect on sports, a mild effect on recreation and shopping, and no effect on traveling, feeding, bathing, dressing, toileting, grooming, or driving. A January 2010 VA examination report reflects that the Veteran’s disability had a severe effect on sports, but only a mild effect on chores, shopping, recreation, and exercise. He had flexion to 110 degrees and full extension. Despite objective evidence of pain on repetitive motion of flexion, there was no additional limitation. He reported flare-ups of moderate severity occurring every two to three weeks and lasting one to two days in duration. They were treated with rest, pain mediation, and ice. The Veteran reported that he could stand for 15 to 30 minutes at a time and walk no more than a few yards. A June 2012 physical therapy consult record reflects that the Veteran was given a new knee brace for his pain. A May 2017 VA examination report reflects that the Veteran reported that since his last evaluation, his knee is less stable and hurts more. The Veteran did not report any flare-ups. He reported that walking and climbing on uneven terrain is difficult. He had range of motion from 5 to 125 degrees. There was evidence of pain with weightbearing, flexion, passive range of motion, and non-weight bearing. The Veteran had full muscle strength. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. He had normal joint stability on anterior, posterior, medial, and lateral testing. The Veteran reported constant use of a brace. The Board finds, based on the evidence of record, that an increased rating is not warranted for any period on appeal. The Veteran would be entitled to a higher rating under DC 5260 if he had flexion limited to 45 degrees or less. However, as noted above, his flexion has been much greater than that (115 degrees, 110 degrees, 125 degrees). Even considering his additional symptoms, the evidence does not reflect that the symptoms have caused something akin to 45 degrees or less of flexion. The Board also notes that the Veteran is not entitled to a rating under DC 5261 as the evidence does not reflect extension limited to 10 degrees or greater, to include with consideration of pain and other symptoms. A rating under DC 5258 is not warranted as the evidence does not support dislocated semilunar cartilage with symptoms noted under that code. A rating under DC 5257 is not warranted as the evidence does not support recurrent subluxation or lateral instability. In 2008 and 2010, the Veteran denied instability. While the Veteran reported in 2017 that his knee feels “less stable”, the Board finds that the clinical findings are more probative as to lateral stability. Although lay opinions may be competent and credible as to what a person feels may be happening with regard to the knee joint, the Board find that clinical testing by objective clinicians is more accurate as to what is actually happening in the knee joint in terms of stability. The Board has considered that the Veteran has complained of pain and of flare-ups which he described in 2008 and 2010 as pain which is worsened by standing for more than 10 minutes, walking for more than 15 minutes, going down stairs, uneven ground, or any squatting, but which he denied in 2017. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that when a Veteran is not experiencing a flare-up at the time of an examination, the examiner is required to consider the Veteran’s statements, the claims file, and the medical record to estimate functional losses, if any, due to flare-ups, or to explain why such an opinion cannot be provided. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In the present case, the Board finds that the examination reports are adequate. The Veteran has reported which activities/events worsen his pain, and has reported how he treats his pain. Based on those factors, and the frequency and duration of his alleged flare-ups, the Board does not find that these pain-related flare-ups necessitate an even higher rating for limitation of motion, as the record demonstrates that the Veteran’s pain flare-ups did not occur at such a frequency or consistency to more nearly equate to a greater limitation of motion as considered by DCs 5260 and 5261. In other words, the Veteran in uncomfortable when he maintains a position for too long (e.g. standing) and must reposition, and has pain with certain activities; however, it has not been shown that his range of motion is so limited so as to warrant a higher rating under 5260 or a separate rating under 5261. In making the finding that an increased rating is not warranted for any period on appeal, the Board has also considered the Court’s holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011). As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). A May 2017 VA examination report reflects that the Veteran had been seen at the Princeton Vet Center and that he had brought at least one record (a cover letter) to his examination; however additional records and the cover letter were not submitted to the RO or the Board. A remand is required to allow VA to request these potentially relevant records. The Veteran does not have verified stressors for a claim of service connection for PTSD, and his reports of alleged stressors in Korea have not been shown to be consistent with his actual service, time, and place. (Moreover, any allegation of service in Grenada has not been shown to be consistent with his service.) The Veteran has denied military sexual trauma on more than one occasion (e.g. November 2011, February 2012); however, he has also reported a stressor of being “groped” during “safety” checks. Thus, as the claim is being remanded anyway, the Board finds that he should be advised of what evidence from sources other than his service records may support his stressor of a personal assault. 38 C.F.R. § 3.304 (f)(5). An August 2009 VA social worker record reflects that the Veteran reported that he cannot work due to “seizures” and that he had applied for Social Security Administration (SSA) disability benefits. A January 2010 SSA determination letter reflects that the Veteran was granted benefits and that he had severe disabilities to include major depressive disorder and a personality disorder. However, actual records reviewed by SSA were not associated with the determination letter. A remand is required to allow VA to request these records. The Board finds that all VA records for mental health, to include in-patient records from hospitalization in November 2008, should be associated with the claims file. (The earliest clinical record is from June 2008 but indicates that the Veteran was not a new patient.) Entitlement to a total disability rating based on individual unemployability (TDIU) Finally, because a decision on the issue of entitlement to service connection for an acquried psychiatric disaiblity could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand is therefore, required. The matter is REMANDED for the following action: 1. Send the Veteran notice required for PTSD claims based on personal assault, and allow time for a response. 2. Ask the Veteran to complete a VA Form 21-4142 for the Vet Center in Princeton. After authorization is received, obtain all treatment records. Document all requests for information as well as all responses in the claims file. 3. Obtain all VA records for the Veteran’s mental health, to include records prior to June 2008, and in-patient records from hospitalization in November 2008. 4. Obtain the Veteran’s federal records from the Social Security Administration, to include all clinical records which were used in making a determination in approximately January 2010. Document all requests for information as well as all responses in the claims file. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard